Johnson v. NCB Collection Services

• Decision Date: 21 August 1992
• Docket Number: Civ. No. 3:91-326 (JAC).
• Citation: 799 F. Supp. 1298
• Parties: Richard W. JOHNSON v. NCB COLLECTION SERVICES.
• Court: U.S. District Court — District of Connecticut

799 F. Supp. 1298

Richard W. JOHNSON v. NCB COLLECTION SERVICES.

Civ. No. 3:91-326 (JAC).

United States District Court, D. Connecticut.

July 23, 1992.

Ruling on Motion to Alter and for Reconsideration August 21, 1992.

COPYRIGHT MATERIAL OMITTED

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

Philip D. Jackson, Ciaravino, Jackson & Tedeschi, Freeport, N.Y., for defendant.

RULING ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND TO STRIKE

JOSÉ A. CABRANES, Chief Judge:

This action arises from a collection letter sent by defendant NCB Collection Services ("NCB") to plaintiff Richard W. Johnson ("Johnson"). The Complaint is framed in two counts. In Count One, Johnson alleges that in sending the letter NCB engaged in various deceptive collection practices in violation of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et. seq. In Count Two, Johnson alleges that NCB's collection practices violated the Connecticut Creditors' Collection Practices Act, Conn.Gen.Stat. § 36-243a et seq., the Consumer Collection Agency Act, Conn.Gen. Stat. § 42-127 et seq., and the Connecticut Unfair Trade Practices Act, Conn.Gen.Stat. § 42-110a et. seq.

Pending before the court are plaintiff's Motion for Summary Judgment (filed Dec. 27, 1991), defendant's Cross-Motion for Summary Judgment (filed Jan. 21, 1992), and plaintiff's Motion to Strike Goldberg Affidavit (filed Jan. 28, 1992). Following oral argument, the motions are ripe for decision.

BACKGROUND

On December 18, 1990, NCB, a "debt collector" within the meaning of the FDCPA, mailed to plaintiff Johnson a letter formally demanding payment on Johnson's account with American Family Publishers. This letter bore the letterhead of NCB and concluded with the printed name and title, "Althea Thomas, Account Supervisor." The name "Althea Thomas" is an alias assigned exclusively to NCB's employee, Diane Tretolo. NCB admits that although Diane Tretolo holds the title of "Account Supervisor," the duties of her position do not involve personal interaction with debtors.

Included on the letter from NCB is a customer service number for any questions the debtor might have regarding the correspondence. The letter states that this phone service is available continuously 24 hours per day, 7 days per week. If a debtor calls this service and requests "Althea Thomas," the operator on duty refers the call to the next available representative and not to Diane Tretolo, the NCB employee assigned the alias "Althea Thomas."

The return address on NCB's letter to Johnson consisted of three lines of printed type located in the upper left corner of the envelope. "Revenue Department" was printed in boldfaced capital letters on the first line. A post office box number and NCB's city, state, and zip code were printed in regular type on the next two lines. In addition, the words "Personal and Confidential" were printed on the envelope in large, boldfaced, and underlined capital letters. NCB makes no claim that "Revenue Department" is its business or trade name.¹

Enclosed with the letter in question, NCB included a return envelope and indicated that Johnson should use it to send payment of the debt. On the outside of this return envelope NCB had preprinted its own address along with Johnson's name, address and other encoded information regarding his account. The encoded information consisted of a series of numbers and letters found above Johnson's name in the upper left corner of the envelope. The series appeared as: 500 0651JHNRS173R90 0001495. The last four digits were meant to convey to NCB's staff the amount of Johnson's debt, here $14.95.

Johnson contends that, if used to send payment, the return envelope would have disclosed information about his debts to third parties in violation of the FDCPA. In addition, Johnson argues that the use of the alias "Althea Thomas" and the return address of "Revenue Department" on NCB's collection letter violated the FDCPA.

Johnson moves for summary judgment on Count One, that is, on the claims arising from alleged violations of the FDCPA. In response NCB has filed a cross motion, seeking summary judgment on Count One and dismissal of the pendent state claims brought in Count Two. In addition, Johnson moves to strike the affidavit of Michael Goldberg, which NCB filed in support of its cross motion on January 21, 1992 ("Goldberg Affidavit"). This affidavit purports to set forth legislative history of the FDCPA regarding the use of alias names by debt collectors. For the reasons stated below, Johnson's motion for summary judgment is denied and NCB's cross motion for summary judgment is granted. In addition, Johnson's motion to strike the Goldberg Affidavit is granted in part and denied in part.

DISCUSSION

A.

I first consider Johnson's motion to strike the affidavit of Michael Goldberg. NCB submitted the Goldberg Affidavit in an effort to illuminate the legislative history of the FDCPA. Johnson contends that Goldberg's statements are hearsay and inadmissible.

An affidavit filed in support of a motion for summary judgment must set forth statements that would be admissible into evidence. Schiess-Froriep Corp. v. S.S. Finnsailor, 574 F.2d 123, 126 (2d Cir. 1978). Affidavits consisting of merely conclusory statements and hearsay should be disregarded. See, e.g., Monroe v. Board of Education, 65 F.R.D. 641, 650 (D.Conn. 1975). Presence of some inadmissible material, however, does not mandate that an entire affidavit be disregarded. United States v. Alessi, 599 F.2d 513, 514-515 (2d Cir.1979).

Goldberg's assertions that the members of the Congressional subcommittee responsible for drafting the FDCPA approved of the use of aliases and desk names would be inadmissible into evidence, as would his statements maintaining that subcommittee members were aware that the use of aliases was a standard procedure in the collection industry. These assertions are clearly hearsay since they purport to declare the collective intent and awareness of the subcommittee. Moreover, the relevance of such private impressions is questionable in light of the existence of an official legislative history. Johnson's motion to strike with respect to these statements is therefore granted.

Goldberg's statement that the use of aliases and desk names in the collection industry existed prior to the passage of the FDCPA, however, constitutes admissible evidence. As past president of the American Collectors Association, Goldberg made these statements based on his own personal knowledge. Johnson's motion with respect to these statements is therefore denied.

B.

Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show 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). "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986) (emphasis in original). While the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), a party may not "rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). The non-moving party may defeat the summary judgment motion by producing sufficient specific facts to establish that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Finally, "`mere conclusory allegations or denials'" in legal memoranda or oral argument are not evidence and cannot by themselves create a genuine issue of material fact where none would otherwise exist. Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir.1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)).

C.

Johnson's initial contention is that NCB's use of the name and title "Althea Thomas, Account Supervisor" violated the FDCPA's prohibitions on the "use of any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Johnson argues that the use of an alias or office name on a "collection letter" is a deceptive practice and therefore a per se violation of the FDCPA. The use is misleading, Johnson explains, because a debtor receiving a letter using an alias or office name would naturally assume that the name would correspond to an actual person.

NCB, on the other hand, contends that the use of "desk names" and aliases is a widely-used practice in the collection industry that predates the passage of the FDCPA. Goldberg Affidavit at 2; Field Affidavit at 1. NCB moreover asserts that the use of aliases is essential for the protection of its employees. Collection employees, NCB avers, occupy a vulnerable position when required to reveal their true identities in communications with debtors. NCB argues that collection agencies use aliases or office names to avoid subjecting their employees to the possible reprisals of irate and frustrated debtors.

Whether the use of an assigned alias on written communication violates the FDCPA is, of course, a question of statutory construction. Nowhere in its several specific provisions does the FDCPA explicitly prohibit the practice. Johnson contends only that the use of the alias violates the introductory language of 15 U.S.C. § 1692e, which broadly prohibits the use of "any false,...