about to be taken. Id. Because the defendant in Pipiles conceded that legal action was not usually taken for such small accounts, the court held that the notices violated § 1692e(5). Id.
The language in TSI's notices does not contained a clear threat similar to that found in Pipiles. Moreover, TSI's president indicates that TSI does indeed refer files on which payment has not been made to its Credit Management Services Office after sending the standard collection notices. He further indicates that TSI's Credit Management Services Office does recommend legal action depending on the facts and circumstances of each individual file. The record is therefore entirely devoid of proof either that TSI threatened to initiate a lawsuit or that it did not intend to commence a lawsuit. We therefore grant TSI summary judgment dismissing all claims made pursuant to Section 1692e(5).
VII. The § 1692e(10) Claim
Section 1692e(10) forbids "the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." 15 U.S.C. § 1692e(10). In essence, plaintiffs contend that every statement they claim violates either Section 1692g(a) or Section 1692e(5) also violates Section 1692e(10) as a deceptive practice or false representation.
We already have ruled that there are no Section 1692e(5) violations because TSI has not threatened action that it did not intend to take. Therefore, these same statements cannot violate Section 1692e(10) as false representations or deceptive practices.
As noted above, the August 20, 1992 notice stated that plaintiffs' debt was assumed to be valid even though the Robinsons still had 10 days to contest this debt before its validity could be assumed. Therefore, the August 20, 1992 notice contained a false representation. In Anthes, the court held the same false representation to be insufficient to support a finding that TSI had violated Section 1692e(10) because TSI sent the offending notice only two days before the expiration of the validation period. Anthes, 765 F. Supp. at 171. Under these circumstances, the court concluded that the debt collector did not send the notice early with the expectation that this action would enable it to collect a debt. Id. Here, in contrast, the notice was sent 10 days before it was legally permissible to assume the validity of the debt. Moreover, this very defendant had been forewarned by the court in Anthes that the same statement was actionable at least as a violation of Section 1692g(a). Id. In this markedly different procedural posture, we find that the statement that the plaintiffs' debt was assumed to be valid did violate Section 1692e(10). Plaintiffs' motion for summary judgment on this claim therefore is granted.
Plaintiffs complained that several other portions of the August 10th and August 20th notices violated Section 1692g(a) because they contradicted or overshadowed the validation notice. We reserved these claims for the jury and the same result is appropriate for claims concerning the same statements under Section 1692e(10). Cf. Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1178 (11th Cir. 1985) (whether the least sophisticated consumer would construe language susceptible of more than one meaning as deceptive is a question for the jury).
In its answer, TSI counterclaimed for sanctions and attorneys' fees pursuant to Fed. R. Civ. P. 11. The Robinsons, believing this request to be one for attorneys' fees pursuant to 15 U.S.C. § 1692k(a)(3), request in their memorandum of law although not in their notice of motion or supporting affidavit that we deny this request. Because of this procedural posture, plaintiffs' request cannot properly be acted upon. However, we note in passing that no basis for sanctions pursuant to Fed. R. Civ. P. 11 has yet been established.
Plaintiffs are granted partial summary judgment on liability establishing that TSI violated 15 U.S.C. § 1692g(a) and 15 U.S.C. § 1692e(10) by the assertion that "SINCE VALIDITY OF THIS LONG OVERDUE ACCOUNT HAS NOT BEEN DISPUTED, IT IS NOW ASSUMED TO BE VALID" in the August 10th notice. TSI is granted summary judgment establishing that it did not violate 15 U.S.C. § 1692e(5) or 15 U.S.C. § 1692c(a)(2) and that its September 10, 1992 notice did not violate Section 1692g(a) or any other provision of the FDCPA. In addition, TSI is granted summary judgment dismissing all claims that statements threatening further action by TSI constitute violations of 15 U.S.C. § 1692e(10). TSI is also granted an order pursuant to Fed. R. Civ. P. 56(d) establishing that the Robinsons received the July 31 notice. Plaintiffs are granted partial summary judgment establishing that Emma Robinson is not bound by the Second Release. All other issues properly raised on this motion, including the effect of the Second Release on Louis Robinson's claims, are reserved for the jury.
IT IS SO ORDERED.
Dated: February 8, 1995
Syracuse, New York
ROSEMARY S. POOLER
DISTRICT COURT JUDGE
1. August 10, 1992 Notice:
IMPERATIVE - - GRACE PERIOD ABOUT TO EXPIRE. OUR CLIENT SHOWS AN UNPAID ACCOUNT IN THE ABOVE STATED AMOUNT APPEARING LEGALLY DUE AND OWING BY YOU.
THIS ACCOUNT HAS BEEN REFERRED TO OUR AGENCY AND WE ARE AUTHORIZED TO PURSUE COLLECTION. WITH OFFICES NATIONWIDE, A NUMBER OF ALTERNATIVES ARE AVAILABLE TO US TO EFFECT SETTLEMENT. YOU MAY ELIMINATE THE POSSIBILITY OF ADDITIONAL COSTS AND MAKE FURTHER COMMUNICATION UNNECESSARY BY CONTACTING YOUR CREDITOR AT ONCE. BE SURE TO ENCLOSE THIS LETTER WITH YOUR PAYMENT FOR PROPER IDENTIFICATION.
H & R BLOCK TEL.315/475-1040
ATTN CREDIT RATING DEPARTMENT