KAVALIN v. CREDIT

• Decision Date: 30 March 2011
• Docket Number: 10-CV-314-JTC
• Parties: SHARI KAVALIN, an individual, on behalf of herself and all others similarly situated, Plaintiffs, v. GLOBAL CREDIT & COLLECTION CORPORATION, a Delaware Corporation, and JOHN AND JANE DOES NUMBERS 1 THROUGH 25, being fictitious names of unidentified persons who control the policies and practices invoked by Global Credit & Collection Corporation, Defendants.
• Court: U.S. District Court — Western District of New York

SHARI KAVALIN, an individual, on behalf of

herself and all others similarly situated, Plaintiffs,

v.GLOBAL CREDIT & COLLECTION

CORPORATION, a Delaware Corporation, and

JOHN AND JANE DOES NUMBERS 1

THROUGH 25, being fictitious names of

unidentified persons who control the policies and

practices invoked by Global Credit & Collection

Corporation, Defendants.

10-CV-314-JTC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Dated: March 30, 2011

Plaintiff Shari Kavalin brings this putative class action against defendant Global Credit and Collection Corporation ("Global Credit") asserting claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. ("FCCPA"). Global Credit moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's claims brought under certain provisions of the FDCPA, and to dismiss plaintiff's FCCPA claims in their entirety. For the reasons that follow, Global Credit's motion is granted in part and denied in part.

BACKGROUND

Plaintiff is a resident of Broward County, Florida. Global Credit is a debt collection agency with its principal place of business in Williamsville, New York. Plaintiff alleges that, beginning in early October 2009, Global Credit sent her a collection letter, and left "scores" of voice messages on her cell phone, in connection with a delinquent consumer account at Capital One Bank. "By way of example," plaintiff claims that Global Credit left the following voice messages:

Good afternoon, my name is Andrew Metcalf. I am the Senior supervisor at Global. Over the past week, we have sent correspondence to the address we have on file for you. Due to the Privacy Act, I am unable to disclose the name of the person that I am trying to reach; however, it is a time-sensitive matter and requires your immediate attention. My staff are available to help analyze your situation and provide solutions, which meet your needs. We are available to help answer any questions or concerns you may have until 9:00 p.m. this evening. Please give us a call at 1-877-295-9638, or press one now to speak with a qualified agent. To speak with me directly, you may call me at toll-free 1-877- 295-9638 and ask my staff to transfer you to extension 873.

Item 10, ¶ 43 (message left on October 8, 2009).

Good afternoon, my name is Andrew Metcalf, I'm trying to get in contact with you in regards to an important matter that's just reached our office. Our client has required immediate attention from you for some time now. You may reach us directly at 1-877-295-9638. Due to the importance of this matter, our office will be open this evening until 9:00 p.m. for your immediate attention. You may reach us at, toll-free, 1-877-295-9638.

Id., ¶ 46 (messages left on October 19 and 22, 2009).

Hello, good day; my name is "Arion." I'm calling with regards to an important business matter. It would be in your best interest to get this meeting [sic] resolved as soon as possible. We have 48 hours to resolve this matter. So you need to return this call or forfeit options available. To stop further phone calls, and to resolve this issue, please contact us on 1-877-295-9638. Thank you.

Id., ¶ 48 (message left on October 24, 2009).¹ Plaintiff claims that these messages fail to disclose the caller's identity, contain materially false, deceptive and misleading statements that create a false sense of urgency, and otherwise amount to "conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt in violation of 15 U.S.C. § 1692d" and several other provisions of the FDCPA. Item 10, ¶ 133. She also claims that these messages are actionable under § 559.72 of the FCCPA, specifically subsections (7) (prohibiting collectors of consumer debt from "willfully" engaging in "conduct which can reasonably be expected to abuse or harass the debtor"), and (8) (prohibiting the use of profane, obscene, vulgar, or willfully abusive language in communicating debtors). See id. at ¶ 136.

Plaintiff further alleges in her amended complaint that ,"[i]n or about the middle or latter part of October 2009" (id., ¶ 79), she received a letter from Global Credit dated October 2, 2009, which stated in part:

Your delinquent account now meets Capital One Bank (USA), N.A.'s guidelines for legal action if it charges off.

Your account has been placed with Global Credit & Collection Corp., a collection agency. This is an attempt to collect a debt. Any information obtained will be used for that purpose.

Capital One . . . has not yet made a decision to file a lawsuit, there is still time for you to work with us in resolving this matter.

If we cannot get this matter resolved soon and your account charges off, Capital One . . . may be forced to take legal action. This could result in a judgment against you. If Capital One . . . obtains a judgment against you, they can take whatever actions they deem advisable to enforce it.

Item 10, Ex. A. Plaintiff claims that these "written communications," like the cell phone messages, contain false, deceptive and misleading representations amounting to conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt, in violation of several provisions of the FDCPA (id., ¶ 134), as well as § 559.72, subsections (7) and (8), of the FCCPA (see id. at ¶ 137).

Global Credit moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the following claims:

1. Plaintiff's claim that the October 2, 2009 collection letter violated § 1692d of the FDCPA;

2. Plaintiff's claim that the four telephone messages left for her during the month of October 2009 violated sections 1692d and/or 1692d(5) of the FDCPA;

3. Plaintiff's FCCPA claim, in its entirety.

DISCUSSION

I. Fed. R. Civ. P. 12(b)(6)

Rule 12(b)(6) allows a party to assert by motion the defense that the complaint against it fails to state a claim upon which relief can be granted. In ruling on the motion, the court must accept as true all of the well-pleaded allegations in the complaint and draw all reasonable inferences in favor of the non-moving party. See, e.g., Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt, P.C., 2010 WL 1270190, at *2 (E.D.N.Y. Jan. 27, 2010) (citing Holmes v. Poskanzer, 342 Fed. Appx. 651, 652 (2d Cir. 2009)). To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, _U.S._,_, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In applying this "plausibility"standard, the court's inquiry "is guided by '[t]wo working principles.' " Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal,_U.S. at_, 129 S.Ct. at 1949)). First, the "tenet" that the court must accept the allegations in the complaint as true "is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (internal quotation marks, citations, and alterations omitted). " 'Second, only a complaint that states a plausible claim for relief survives a motion to dismiss,' and '[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.' " Id. (quoting Iqbal,_U.S._, 129 S.Ct. at 1950). Thus, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 129 S.Ct. at 1950.

II. The Fair Debt Collection Practices Act

The FDCPA was enacted in 1977 "to eliminate abusive debt collection practices by debt collectors . . . ." 15 U.S.C. § 1692(e); see also Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (FDCPA enacted to address collection abuses such as use of obscene language, threats of violence, telephone calls at unreasonable hours, and misrepresentation of consumer's legal rights). The FDCPA sets forth several specific examples of particular conduct and practices that debt collectors are forbidden to employ. See, e.g., 15 U.S.C. §§ 1692d (listing examples of prohibited harassing, oppressive, or abusive conduct), 1692e (listing examples of prohibited "false, deceptive, or misleading representation or means"), 1692f (listing examples of prohibited "unfair or unconscionable" practices). The lists of forbidden conduct and practices, however, are "non-exhaustive, and the FDCPA generally forbids collectors from engaging in unfair, deceptive, or harassing behavior." Kropelnicki, 290 F.3d at 127.

In order to determine whether a communication from a debt collector violates any of the FDCPA's proscriptions, courts in the Second Circuit apply a standard reflecting the perspective of the "least sophisticated consumer." Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 90 (2d Cir. 2008). The purpose of the least sophisticated consumer standard is two-fold: "it (1) ensures the protection of all consumers, even the naive and the trusting, against deceptive debt collection practices, and (2) protects debt collectors against liability for bizarre or idiosyncratic interpretations of collection notices." Clomon v. Jackson, 988 F.2d 1314, 1320 (2d Cir. 1993); see also Bank v. Pentagroup Financial, LLC, 2009 WL 1606420, at *3 (E.D.N.Y. June 9, 2009) (courts must balance need to protect consumers against need to ensure debt collectors are not held liable for unreasonable misinterpretations of collection notices). The courts have imposed a slightly different standard in evaluating claims brought under § 1692d, holding that claims under that section "should be viewed from the perspective of a consumer whose...