The opinion of the court was delivered by: ROSEMARY S. POOLER
Defendant Lacy, Katzen, Ryen & Mittleman ("Lacy") moves pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. Plaintiffs Dean and Catherine Beeman cross-move for summary judgment on liability pursuant to Fed. R. Civ. P. 56.
Plaintiffs commenced this action under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq. ("FDCPA") by filing a complaint with the Clerk's office on June 21, 1994. We have jurisdiction pursuant to 15 U.S.C. § 1692k(d).
The complaint alleges that Lacy -- a law firm that regularly attempts to collect debts -- violated Section 1692g of the FDCPA by sending the Beemans a debt collection letter dated June 23, 1993 (the "June 23rd letter") that failed to adequately advise the Beemans of their rights and attempted to impose a shorter period for disputing the alleged debt than allowed by statute. 15 U.S.C. § 1692g(a). Section 1692g(a) states that within five days after initially communicating with a consumer in connection with the collection of a debt, a debt collector must make certain disclosures in a validation notice to the consumer regarding the consumer's rights to dispute the debt and to obtain additional information, verification, and/or a copy of a judgment. Id. § 1692g(a). If the consumer disputes the debt in writing or requests the name and address of the original creditor in writing within 30 days of receipt of the validation notice, then the debt collector must suspend collection until the verification or name and address are supplied. Id. § 1692g(b).
The June 23rd letter
Your unpaid account referred to above has been referred to our office for collection.
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this claim or any portion thereof this office will assume it to be valid. If you notify us IN WRITING within 30 days of receiving this notice that the claim or any portion thereof is disputed, we will obtain evidence verifying it and mail a copy to you. If you so request IN WRITING within 30 days of receiving this notice, we will also provide you with the name and address of the original creditor involved in this claim, if different from the current creditor named above.
This is an attempt to collect a debt. Any information obtained will be used for that purpose.
Except as shown above, no part of the letter has a different type face or size from the remainder. The entire letter is on one side of a sheet of Lacy's letterhead. The caption of the letter informs the Beemans that the creditor is Kaufmann's and that the amount of the alleged debt is $ 249.30.
In the memorandum of law filed in support of its motion to dismiss, Lacy urges that the June 23rd letter contains every element required by 15 U.S.C. § 1692g(a) and that plaintiffs have therefore failed to state a claim on which relief can be granted. On their cross-motion for summary judgment, the Beemans claim (1) that the notice is defective because it did not inform them that they could obtain a copy of a judgment against them and (2) that the second paragraph of the June 23rd letter implies that the Beemans must contact Lacy immediately but may do so by telephone or otherwise, thus contradicting and overshadowing the validation notice contained in the third paragraph. Lacy urges that because Kaufmann's had not taken a judgment against the Beemans, the statute did not require Lacy to take the futile step of informing the Beemans that they could get a copy of a judgment.
We heard oral argument on December 5, 1994, and granted Lacy an opportunity to submit proof that Kaufmann's had not taken a judgment against the Beemans. After Lacy submitted this proof in the form of affidavits from Michael Schnittman, a member of the law firm, and Janice Wright, Kaufmann's profit and loss supervisor, we notified counsel of our intention to treat defendant's Rule 12(b)(6) motion to dismiss as a motion for summary judgment pursuant to Fed. R. Civ. P. 56 to the extent that it concerned defendant's failure to notify plaintiffs that defendant would send them a copy of a judgment upon plaintiffs' timely written demand. We also offered plaintiffs an ...