Gaetano v. Payco of Wisconsin, Inc.

• Decision Date: 20 June 1990
• Docket Number: Civ. No. N-89-220 (TFGD).
• Citation: 774 F. Supp. 1404
• Court: U.S. District Court — District of Connecticut
• Parties: Mary J. GAETANO, Plaintiff, v. PAYCO OF WISCONSIN, INC., Defendant.

774 F. Supp. 1404

Mary J. GAETANO, Plaintiff, v. PAYCO OF WISCONSIN, INC., Defendant.

Civ. No. N-89-220 (TFGD).

United States District Court, D. Connecticut.

June 20, 1990.

COPYRIGHT MATERIAL OMITTED

Joanne S. Faulkner, New Haven, Conn., for plaintiff.

Lewis Lerman, Susan Chambers, Ann H. Rubin, Carmody & Torrance, New Haven, Conn., for defendant.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DALY, District Judge.

Plaintiff, Mary Gaetano, alleges that the defendant, Payco of Wisconsin, Inc. ("Payco"), violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o, in its efforts to collect a credit card debt of $6,017.67 on behalf of Chase Manhattan Bank, N.A. ("Chase"). Both the plaintiff and the defendant seek summary judgment on plaintiff's claims.

Summary Judgment Standards

Viewing the record in the light most favorable to the non-moving party, summary judgment is appropriate under Fed.R.Civ.P. 56(c) when the evidence offered raises no genuine disputes of material fact and the moving party is entitled to summary judgment as a matter of law. Cinema North Corp. v. Plaza at Latham Associates, 867 F.2d 135, 139 (2d Cir.1989). To defeat such a motion, the non-moving party must offer concrete evidence tending to show that its claim is more than fanciful, see id.; Fed. R.Civ.P. 56(e); or, alternatively, must show that the movant is not entitled to summary judgment as a matter of law.

This burden remains the same even when cross-motions for summary judgment have been filed. Knowles v. Postmaster General, 656 F.Supp. 593, 597 (D.Conn. 1987). The Court must consider each party's motion on its own merits, drawing all reasonable inferences from the record against the party's whose motion is under review. Schwabenbauer v. Board of Educ., 667 F.2d 305, 314 (2d Cir.1981). Since the facts of this case are straight-forward, the Court will review them in the context of its evaluation of the legal merits of the pending motions.

Discussion

A) The FDCPA

The FDCPA prohibits, inter alia, a debt collector from employing "false, deceptive, or misleading representations or means in connection with the collection of any debt." 15 U.S.C. § 1692e. To determine whether a collection demand is misleading or deceptive, courts employ the "least sophisticated consumer" standard — inquiring whether the least sophisticated debtor would likely be misled or deceived by the collection notice at issue. Swanson v. Southern Oregon Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988); see also Exposition Press, Inc. v. F.T.C., 295 F.2d 869, 873 (2d Cir.1961) ("look not to the most sophisticated consumer, but to the least"). Since the FDCPA is a strict liability statute, the plaintiff need only show one violation of its provisions to be entitled to summary judgment. Colmon v. Payco-General American Credits, Inc., 774 F.Supp. 691, 693 (D.Conn.1990); Riveria v. MAB Collections, Inc., 682 F.Supp. 174, 175-76 (W.D.N.Y.1988).

B) Plaintiff's Summary Judgment Motion

1) False Statements

Plaintiff's first claim is that defendant falsely stated in its second collection notice that "an investigation has disclosed that you are employed...." Plf.Exh. B. By so stating, the plaintiff argues, defendant violated section 1692e(10)'s prohibition against making false representations in order to collect a debt or to obtain information about the consumer. Plaintiff contends that defendant's notice was "intended to smoke her out by having her call, to confirm or deny, or to plead with defendant not to contact her employer." Plf.Mem. at 5 (2/27/90).

The undisputed record indicates that, pursuant to the terms of the collection agreement, on or about November 3, 1988 Chase provided the defendant with information indicating that plaintiff "was employed by Gutkin Caterers, Whaley sic Avenue, New Haven, Connecticut and that the telephone number of Gutkin Caterers was 203/562-6185." Roznik Aff. at ¶ 5. Also undisputed is that defendant tried calling that number on November 15, 1988 only to find that it was not in service at that time. Id. at ¶ 7. On November 16, 1988, the defendant then sent to plaintiff its second collection notice including therein the sentence quoted above.

Plaintiff contends that the statement was untrue because no investigation was undertaken and because defendant's information was "merely that plaintiff had been employed." Plf.Mem. at 1 (3/28/90). The Court disagrees. The defendant did investigate plaintiff's employment status. That defendant gleaned its information from Chase pursuant to standard procedures established in the collection agreement does not detract from this fact. Additionally, defendant investigated by attempting to verify the employment by telephoning the number given it for Gutkin Caterers. The defendant did not violate the FDCPA by failing to state that Gutkin Caterer's phone was not in service at the time the defendant attempted to reach the employer. Significantly, nor did defendant state that it had verified plaintiff's place of employment. Simply because the alleged employer's phone was not in service at the time of the call, did not mean that Gutkin Caterers no longer employed the plaintiff. In the absence of evidence indicating that the defendant knew that plaintiff no longer worked for that caterer or that defendant knew that the caterer never existed or had gone out of business, the Court finds no violation and this claim is dismissed.

Apparently¹, plaintiff also claims that the defendant violated the FDCPA by threatening to sue when it had no intention or ability to sue and by falsely stating that it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS" when it did not intend to do so.² Plf.Exh. A. She also asserts that the following statements threaten litigation which the defendant did not intend to pursue: 1) "WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT OUR COMMAND TO COLLECT DEBTS ... AND ANY INFORMATION WE OBTAIN WILL BE USED AS A BASIS TO ENFORCE COLLECTION OF THE DEBT"; and 2) the "ACCOUNT HAS BEEN GIVEN TO US FOR IMMEDIATE ACTION." Plf.Exh. A.

The FDCPA prohibits debt collectors from threatening action that cannot legally be taken as well as threatening action that they do not intend to undertake. 15 U.S.C. § 1692e(5). Also, forbidden is the use of any false representation or deceptive means to collect or to attempt to collect a debt. 15 U.S.C. § 1692e(10). Plaintiff argues that the defendant violated both of these provisions.

Plaintiff's argument that the defendant violated the first of these provisions misses the mark in two respects. First, plaintiff has offered no evidence, other than counsel's bald assertions, regarding defendant's intent as to any future actions. Second, and more importantly, the Court does not construe the quoted language as threatening litigation. Significantly, the quoted passages contain no reference, either direct or implicit, to suit, lawsuit, legal action, or litigation. Though plaintiff relies on Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d 22 (2d Cir.1989), that case is distinguishable from the one at bar. In Pipiles, the second notice sent to the debtor stated:

Notice is Hereby Given That this Item Has Already Been Referred for Collection Action; We Will At Any Time After 48 Hours Take Action As Necessary And Appropriate To Secure Payment In Full, and Pay this Amount Now If Action Is To Be Stopped.

Id. at 25. Not only is the substance of these statements in many respects more harsh than those made to plaintiff here (and though the debt collector there conceded that the only further action it contemplated was telephone contact), Pipiles differs materially from the case at bar because the consumer had already received an initial collection notice from the debt collector and the second notice given clearly threatened more drastic consequences for non-payment (i.e., legal action). See id. ("clear import of the language, taken as a whole, is that some type of legal action has already been or is about to be initiated and can be averted from running its course only by payment"). For these reasons, the Court dismisses plaintiff's claims that the defendant threatened, without intent, to sue and thereby also falsely represented its intentions as a means of debt collection.

Granting summary judgment on plaintiff's other claim, that defendant falsely stated it would use "ALL APPROVED MEANS AT OUR COMMAND TO COLLECT", is inappropriate. To support this claim, plaintiff argues that the defendant had over two dozen collection letters available, which it did not intend to use and which establishes that defendant made false representations in order to collect a debt. Other than counsel's bald assertion, plaintiff has not offered any evidence supporting the number of collection letters defendant had available for use. Nor has she offered any evidence of defendant's intent with respect to the statement at issue. In similar fashion, defense counsel also makes bald assertions regarding defendant's intent and the number of collections letters. Given the failure of the parties to offer evidence, see Fed.R.Civ.P. 56(c), supporting counsels' arguments, this claim must await trial and summary judgment is denied.

2) Statutorily Required Notices

Plaintiff also contends that the defendant failed to comply with several FDCPA notice provisions. The first of these requires that the debt collector "disclose clearly in all communications made to collect a debt or to obtain information about a consumer, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose." 15 U.S.C. § 1692e(11).

On November 9, 1988 the defendant sent a demand for payment to the plaintiff, indicating in the second paragraph on the reverse side of the demand that:

WE ARE A PROFESSIONAL COLLECTION AGENCY ATTEMPTING TO COLLECT A DEBT. WE ARE ENTITLED TO USE, AND WE INTEND TO USE, ALL APPROVED MEANS AT

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