321 F.3d 292 (2nd Cir. 2003), 02-7017, Miller v. Wolpoff & Abramson, L.L.P.

Docket Nº:02-7017.
Citation:321 F.3d 292
Party Name:Arthur MILLER, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. WOLPOFF & ABRAMSON, L.L.P., Upton, Cohen & Slamowitz, and National Attorney Network, Inc., successor to Wallace & de Mayo, a partnership and wholly-owned subsidiary of TSYS Total Debt Management, Inc., individually and as joint venturers and coconspirator
Case Date:February 25, 2003
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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321 F.3d 292 (2nd Cir. 2003)

Arthur MILLER, on behalf of himself and all others similarly situated, Plaintiff-Appellant,

v.

WOLPOFF & ABRAMSON, L.L.P., Upton, Cohen & Slamowitz, and National Attorney Network, Inc., successor to Wallace & de Mayo, a partnership and wholly-owned subsidiary of TSYS Total Debt Management, Inc., individually and as joint venturers and coconspirators with each other, Defendants-Appellees.

No. 02-7017.

United States Court of Appeals, Second Circuit

February 25, 2003

Argued: Nov. 12, 2002.

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Christopher V. Langone, Chicago, IL (Brian L. Bromberg, New York, NY, Lance Raphael, Chicago, IL, on the brief), for plaintiff-appellant.

Thomas A. Leghorn, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Brett A. Scher, of counsel), for defendants-appellees Wolpoff & Abramson and Upton, Cohen & Slamowitz.

Kevin G. McMorrow, Ahmuty, Demers & McManus, Albertson, N.Y. (Neil H. Angel, on the brief), for defendant-appellee National Attorney Network, Inc.

Before: KEARSE, McLAUGHLIN, and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Plaintiff-appellant Arthur Miller appeals the grant of defendants' motions to dismiss and for partial summary judgment by the United States District Court for the Eastern District of New York (Reena Raggi, then-District Judge). Plaintiff claims that defendants-appellees, law firms Wolpoff & Abramson, L.L.P. ("W & A"), Upton, Cohen & Slamowitz ("UC & S"), and the National Attorney Network ("NAN"), a non-attorney referral network that coordinates the practice of debt collection, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., by sending debt collection letters on attorney letterhead without any meaningful attorney involvement in the decision to send those letters, by attempting to collect attorneys' fees that were to be shared with NAN, and by sending a debt collection letter that was misleading or deceptive.

For the reasons that follow, we hold that the grant of summary judgment on plaintiff's claim that W & A and UC & S failed to conduct a meaningful review of plaintiff's file before sending the debt collection letters on attorney letterhead was premature. We affirm the dismissal of plaintiff's claim that. UC & S's efforts to collect attorneys' fees violates the FDCPA's prohibition on attempting to collect an amount not expressly authorized by the agreement creating the debt or by law. We hold that the underlying credit card agreement permitted

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the collection of attorneys' fees and that the fact that UC & S later may have intended to share those fees with a non-lawyer does not render the attempt to collect such fees illegal, even if that act of sharing might violate New York professional ethics rules. Finally, we hold that plaintiff's claim that language in W & A's original collection letter overshadows or contradicts the validation notice was properly dismissed because the notice clearly advises the consumer of her FDCPA rights and is neither overshadowed nor contradicted by the language on the front of the letter. Accordingly, we vacate in part, affirm in part, and remand.

BACKGROUND

I. Factual Background1

Plaintiff Arthur Miller entered into a credit card agreement with Lord & Taylor. After Miller refused to pay $1618.14 owed on the card, he received a series of letters from defendants W & A and UC & S in connection with their attempts to collect on the debt.

W & A regularly represents Lord & Taylor on collection matters, and Lord & Taylor sent the Miller file to W & A for collection assistance. On February 23, 2000, Ronald Abramson, a partner at W & A, reviewed the "file," which contained the following information: Miller's full name, social security number, current address, home and work phone numbers, the Lord & Taylor account number, the date the credit account was opened, the date of the last charge to the account, the date the account was charged off, the account balance, and "a synopsis of [Lord and Taylor's] recent customer service notes regarding their efforts to resolve Mr. Miller's account prior to forwarding the matter to [W & A] for collection." After reviewing this file, Abramson claims he "activated a print command on Wolpoff & Abramson's computer system and W & A's initial collection letter . . . was printed and mailed to the Plaintiff on February 25, 2000."

The February 25, 2000 letter identified W & A as "Attorneys in the Practice of Debt Collection (A National Attorney Network Firm)." The letter demanded payment of "$1618.14 (including applicable contractual charges)," noted that it was sent with regard to May Department Stores/Lord & Taylor, and stated:

Please be advised that we represent the above-named creditor who claims you have a delinquent balance as stated above. After you have read the important notice on the reverse side of this letter, if appropriate please call our office to resolve this matter.

When paying the balance in full or if you are unable to call our office, check one of the options below and return the bottom portion of this letter in the self-addressed envelope provided for your convenience.

Very truly yours,

WOLPOFF & ABRAMSON, L.L.P.

At the bottom of the letter was a "detach and return" section listing four options with boxes for the consumer to check:

[ ] I mailed a check on_________

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[ ] Here is payment in full made payable to the creditor. Thanks for waiting. (If paying by Western Union Quick Collect, for your convenience please see payment instructions on reverse side.)

[ ] Enclosed is payment in full made payable to the creditor, but it's postdated a few days. (Not applicable for residents of Massachusetts.)

[ ] I cannot call you during the day. Please have someone call me. My telephone number during the day is _________ My telephone number in the evening is_________

* * *This is an attempt by a debt collector to collect a debt and any information obtained will be used for that purpose.* * *

* * * BEFORE RESPONDING TO THIS LETTER * * *

SEE REVERSE SIDE FOR IMPORTANT NOTICE

On the back of the letter, in larger print than the text on the front of the letter, the following notice was printed:

* * *IMPORTANT NOTICE * * *

You are entitled to certain information that sets forth your rights and our obligations under the law. The law provides that: (

a) Within five (5) days after the initial communication with a consumer in connection with the collection of any debt, we 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) unless a consumer, within thirty (30) days after receipt of this notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by this office, (4) if the consumer notifies this office in writing within the thirty day period that the debt, or any portion thereof, is disputed, this office will obtain verification and a copy of such verification will be mailed to the consumer by this office, and (5) upon the consumer's written request within the thirty day period, this office will provide the consumer with the name and address of the original creditor if different from the current creditor. (b) If the consumer notifies this office in writing within the thirty day period that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, we shall cease collection of the debt, or any disputed portion thereof, until this office obtains verification of the debt or the name and address of the original creditor, and a copy of such verification, or name and address of the original creditor, is mailed to the consumer by this office. (c) The failure of a consumer to dispute the validity of a debt under the section may not be construed by any court as an admission of liability by the consumer.

This is an attempt by a debt collector to collect a debt and any information obtained will be used for that purpose.

On April 26, 2000, Miller was sent a second letter, also on W & A letterhead, informing him that:

All attempts to contact you concerning the above account have proven to be unsuccessful. It is important that you call us at 301-961-7620, or toll free at 1-800-678-7720 to discuss this matter. We are pleased to inform you that if you call our office within ten (10) days from the date of this letter, YOU MAY QUALIFY FOR A LARGE DISCOUNT ON THE ABOVE MATTER. This is a limited time offer only; you

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must contact our office within this ten (10) day period.

The letter included a "payment coupon" portion to detach and return with payment.

On May 31, 2000, W & A sent a third letter advising Miller that "[o]ur client has authorized this office to make an extraordinary offer to settle your past-due account with them. We have been permitted to accept $1294.51, which represents 80% of the outstanding balance as settlement in full of your obligation." The letter informed Miller that he had until June 28, 2000 to make a lump sum payment in full, and advised him that if he could not make the entire payment by that date, "please call our office and we will be happy to make reasonable payment arrangements with you on the balance." The letter also instructed that any check or money order should be made payable to the client but sent to W & A's office with the enclosed payment coupon.

Plaintiff did not respond to any of these letters, and on July 12, 2000, plaintiff's file was referred through NAN to UC & S with...

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