Rabideau v. Management Adjustment Bureau, 91-CV-102A.

• Decision Date: 02 July 1992
• Docket Number: No. 91-CV-102A.,91-CV-102A.
• Parties: Kenneth RABIDEAU, Plaintiff, v. MANAGEMENT ADJUSTMENT BUREAU, Defendant.
• Court: U.S. District Court — Western District of New York

805 F. Supp. 1086

Kenneth RABIDEAU, Plaintiff, v. MANAGEMENT ADJUSTMENT BUREAU, Defendant.

No. 91-CV-102A.

United States District Court, W.D. New York.

July 2, 1992.

COPYRIGHT MATERIAL OMITTED

UAW-Ford Legal Services Plan (Booker T. Washington, of counsel), Woodlawn, N.Y., for plaintiff.

Hodgson, Russ, Andrews, Woods & Goodyear (Peter A. Muth, Cheryl R. Storie, of counsel), Buffalo, N.Y., for defendant.

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

The parties to this action executed a consent to proceed before the undersigned which was filed on October 10, 1991. This matter is presently before the following a non-jury trial held before the undersigned on November 19, 1991.

BACKGROUND

Plaintiff commenced this action on February 21, 1991 alleging violations of the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiff claims that two debt collection notices which he received from Defendant violated §§ 1692g and 1692e of the FDCPA. Plaintiff also alleges that the notices which were mailed to Plaintiff by Defendant dated February 12, 1990 and February 28, 1990, demanding payment of a debt allegedly owed by Plaintiff, violated § 1692e of the FDCPA by "overshadowing" and "contradicting" the validation notice required under § 1692g of the FDCPA. Additionally, in his complaint, Plaintiff originally claimed that telephone calls made by Defendant's employees to Plaintiff after the February 28th letter harassed Plaintiff in violation of 15 U.S.C. § 1692d and failed to provide, during such calls, the notice required by 15 U.S.C. § 1692e(11), but Plaintiff withdrew, at trial, these latter two claims relating to the telephone communications.

Plaintiff and Defendant stipulated to a non-jury trial before the undersigned which was commenced and completed on November 19, 1991.

FACTS

On February 12, 1990, Plaintiff received the first of two letter communications from the Defendant relating to a debt of $176.40 which was allegedly owed by Plaintiff to Defendant's client, Kenmore Mercy Hospital. Both letters were addressed to Plaintiff at his home in Grand Island, New York.¹ The first letter referenced "your Plaintiff's account with our client: Kenmore Mercy Hospital" and listed an account number. There was also stated an item identified as "Principal" which listed a corresponding amount of $176.40. The light grade 8½" × 11" paper document consisted of two parts, with the upper part being a light blue colored paper, which comprised about two-thirds of the total area of the front side of the letter, and a lower part being of plain white paper separated from the upper part by a perforated line which permitted the recipient to tear off the lower part. Approximately two-thirds from the top of the document and immediately below the references to the Plaintiff and the Kenmore Mercy "account" information was the word "REFERRAL", highlighted by a row of small printed asterisks above and below the word. Directly below the word "Referral" was the following text in upper case ordinary lettering was approximately 1/8 ", or 8 point,² in height.

YOUR CREDITOR HAS REFERRED YOUR ACCOUNT TO OUR COLLECTION AGENCY FOR IMMEDIATE COLLECTION.

THIS IS A DEMAND FOR PAYMENT IN FULL TODAY. TO AVOID FURTHER CONTACT, RETURN THE BOTTOM SECTION OF THIS NOTICE WITH YOUR FULL PAYMENT TODAY!

TO DISCUSS THIS DEMAND, CALL THE NUMBER LISTED BELOW.

Approximately 3/8 " below this statement Defendant's telephone number is printed in the same size and style print as the above text. Immediately below this number and centered within the page was the word IMPORTANT. This word appeared as white lettering ¼" in height within a solid blue field which formed a box 3/8 " in height and 1¾" in length. The bottom of the box abuts the perforated line described above. The blue portion of the face of the document extends into the lower detachable coupon-like portion over one quarter inch. Within this space and centered on the page appeared the following solid royal blue large block in 1/8 " block lettering: PLEASE ENCLOSE THIS PORTION WITH YOUR PAYMENT. Below this statement, in the remaining "white" space of the tear-off portion of the letter, is additional printed information referring to the Defendant, Plaintiff's name and address, the date, a reference to the creditor, Kenmore Mercy Hospital, and the amount due to the creditor. This printing was of the same style and size as the Referral and Notification information described above.

In the lower right corner of the tear-off return portion of the letter was a rectangle approximately 2¾" × 7/8 ". The top one-quarter of the rectangle was a solid dark blue background containing the following in reverse white ¼" lettering: "FOR YOUR CONVENIENCE...." Below this was approximately 1/16" in height or 7 point solid lower case lettering of the same solid dark blue color as the background referred to above which states as follows: "Your payment can now be made with your Visa Card or MasterCard." To either side and below this statement are the logos of each of the major credit cards, also in dark blue, with each logo being approximately 3/8 " by ¼" in size. Between each logo, in the same size and dark blue lettering as on the statement above, was the statement: "See reverse side for details." Just above the bottom of this tear-off portion, in blue capital letters approximately 1/16" inch or 7 point, was the following

statement: SEE REVERSE SIDE FOR IMPORTANT INFORMATION.

The reverse side of the document is note-worthy in that its color is neither that of the light blue background or the plain white tear-off portion of the front, but rather of a light pastel-like grey shade. Similarly, the lettering is also of a generally grey color, albeit of a somewhat darker shade. In particular, in the upper portion of this reverse side, centered in a space of approximately 3" × 3 1/8 ", the "validation notice" required by 16 U.S.C. § 1692g was printed in 1/16" or 7 point grey print, slightly darker than the color of the paper itself.

Unless you notify this office in 30 days after receiving this notice that you dispute the validity of the debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing in 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of the judgment, if any, and mail you a copy of the verification. If you request this office in writing in 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

This is an attempt to collect a debt. Any information obtained will be used for that purpose.

If you notify our agency in writing to cease contacting you by telephone at our place of employment, no further contact shall be made.

If you refuse to pay the debt or you wish our agency to cease further communication and you so advise our agency in writing, we shall not communicate further with you except:

A. To advise you we tend to invoke specified remedies permitted by law or that we may invoke specified remedies which we ordinarily invoke.

B. To advise you our efforts are being terminated.

In the lower portion of the tear-off portion of the reverse side were three lines of text, in a darker shade of grey, which stated as follows:

If you desire this method of payment please present your card at our business office, phone our office or fill out and sign this form.

Below this statement were five lines which invited the addressee to provide a credit card number, choosing between Visa and MasterCard, a "Bank ID no.", cardholder signature, account name and purpose and amount. To the left of these spaces again appeared the Visa and MasterCard logos in the same darker grey shade as the three line statement quoted above.

Plaintiff received a second letter from Defendant dated February 28, 1990. The parties stipulated that this document was identical in every respect to the February 12, 1990 letter, except that, instead of the word "REFERRAL" appearing as in the first letter, the phrase "SECOND NOTICE" appeared. A copy of the February 28th letter is attached as an exhibit to this opinion. Additionally, instead of the text quoted above in the first letter, in discussing the "Referral" of the debt to be collected, the following statement appeared:

YOU HAVE BEEN PREVIOUSLY NOTIFIED TO CLEAR THE BALANCE, TO AVOID FURTHER COLLECTION MEASURES, YOUR REMITTANCE IN FULL MUST BE IN THIS OFFICE WITHIN (5) DAYS OF RECEIPT OF THIS NOTICE.

SHOULD WE NOT HEAR FROM YOU, WE WILL ADVISE THE CREDITOR THAT YOU HAVE REFUSED TO PAY.

Plaintiff testified that after he received the February 12, 1990 letter from Defendant, but took no immediate action because he believed the invoice had been paid by his health insurance carrier. However, after receiving the second letter, he called the creditor, Kenmore Mercy Hospital, and was told that the bill had not been paid because a supposedly incorrect account number had been provided to the insurance carrier.

Plaintiff also claimed that Defendant's employee, a Mr. Petco, phoned him several times on March 1, 1990 and thereafter demanding payment. Although Plaintiff's recollection of these subsequent events was less than clear, the weight of the evidence supports the conclusion that Plaintiff did, in fact, receive both of the letters sent by Defendant prior to receiving the telephone calls. Questions of credibility surrounding the exact timing and substance of the telephone calls were rendered moot by virtue of Plaintiff's withdrawal of his harassment claim under 15 U.S.C. § 1692d at trial.

Plaintiff, who completed two years of college, was able to read and understand the two letters, although, as to the information on the reverse side of the letters, his understanding was "not so good" and he was unsure as to whether he actually read the February 28, 1990 letter. H...