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WIENER v. BLOOMFIELD

October 27, 1995

LENI LEVENSON WIENER, Plaintiff, against MARSHALL E. BLOOMFIELD, Defendant.


The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 LEWIS A. KAPLAN, District Judge.

 Plaintiff brings this action under the Fair Debt Collection Practices Act (the "Act"), 15 U.S.C. §§ 1692 et seq. (1986). She contends that defendant violated several provisions of the Act in communications sent by him as the debt collector for a creditor of the plaintiff. The matter is before the Court on cross-motions for summary judgment.

 Facts

 The essential facts in this case are undisputed. Fred M. Schildwachter & Sons, Inc., ("Schildwachter") retained the defendant, an attorney with offices in the Bronx, to collect a debt of $ 1,019.76 that it claimed was owed to it by the plaintiff for service of her home fuel oil tank. Plaintiff resides in Westchester County.

 The defendant sent a series of letters to the plaintiff in an attempt to collect the debt. The first letter, dated March 1, 1995, identified defendant as the representative of Schildwachter, stated that it was an attempt to collect a debt of $ 1,019.76, threatened to "proceed to prepare for litigation" against the plaintiff if she did not respond within ten days, and informed plaintiff that she had thirty days to dispute the validity of the debt. (Compl. Ex. A) The second letter, dated March 27, 1995, reiterated that defendant was seeking to collect the $ 1,019.76 debt on behalf of Schildwachter, set a deadline of April 6 for plaintiff to respond, and threatened immediate litigation if plaintiff did not respond by the deadline. (Compl. Ex. D) It enclosed copies of documents captioned "Summons" and "Verified Complaint" (Compl. Ex. B), and "Summons & Complaint: Service Pursuant to CPLR 312-a" and "Acknowledgment of Receipt of Summons and Complaint." (Compl. Ex. C) These seeming court documents were captioned "Fred M. Schildwachter & Sons, Inc., Plaintiff(s), against Frederick P. Wiener, & Leni Levenson Wiener, Defendant(s)[,]" and "Supreme Court of the State of New York County of the Bronx[.]" Defendant's final letter, dated April 12, 1995, after again identifying the defendant and the debt about which he was contacting plaintiff, demanded that plaintiff respond by April 22 or face litigation. All three letters were headed "Re: Fred M. Schildwachter & Sons, Inc. -against- Frederick P. Wiener Leni Levenson Wiener[.]" (Compl. Ex.s A, D, E)

 At no time did plaintiff respond to defendant's communications regarding the debt, nor did plaintiff ever inform defendant or her creditor that she disputed the validity of the debt. Plaintiffs complaint in the instant action is dated April 24, 1995, and was served on the defendant on May 3, 1995. From the record it does not appear that the defendant, as attorney for the creditor, has filed suit against plaintiff to collect the debt.

 Discussion

 Congress enacted the Fair Debt Collection Practices Act in 1977 in order to check practices by debt collectors that Congress had found were "abusive, deceptive, and unfair." 15 U.S.C. § 1692 (1986). The Act requires, among other things, that consumers have thirty days from receiving notice of a debt in which to dispute the validity of the debt and requires that debt collectors so inform recipients of collection notices. Id., § 1692g. It generally prohibits the use of "any false, deceptive, or misleading representation or means in connection with the collection of a debt[,]" and specifically enumerates several such proscribed misrepresentations. Id., § 1692e. In order to prevent the use by debt collectors of fora that are inconvenient for consumers, the Act mandates that consumer debt collection actions be commenced in the judicial district in which the consumer resides, unless certain provisions not relevant here apply. Id., § 1692i. The plaintiff's claims under each of these sections are discussed below.

 The "Overshadowing" Claim Under Section 1692g

 Plaintiff contends that the use of conflicting deadlines in all three of the defendant's collection letters violated the Act. The mere use of conflicting deadlines alone, however, is not itself a violation of the Act. A debt collector violates the Act by giving a consumer conflicting deadlines if those deadlines result in overshadowing the notice required by Section 1692g of the consumer's right to a thirty day period in which to dispute the debt. Graziano v. Harrison, 950 F.2d 107, 111 (3d Cir. 1991) (cited in Clomon v. Jackson, 988 F.2d 1314, 1319 (2d Cir. 1993)); Miller v. Payco-General Am. Credits, Inc., 943 F.2d 482, 484 (4th Cir. 1991); Swanson v. Southern Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir. 1988); Tsenes v. Trans-Continental Credit and Collection Corp., 892 F. Supp. 461, 465 (E.D.N.Y. 1995).

 In this case, defendant's March 1, 1995 letter provided the required notice that the debtor had thirty days to dispute the debt. It nevertheless instructed the debtor to respond within ten days, and noted a "deadline" of March 11, 1995. The letter was headed "Re: Fred M. Schildwachter & Sons, Inc. -against- Frederick P. Wiener Leni Levenson Wiener" and stated that "if you do not respond to our office within 10 days of receipt of this letter, you will force us to proceed to prepare for litigation against you."

 In deciding whether a contradictory deadline overshadows notice of the statutory thirty day validation period, the Court views the communication from the perspective of the "least sophisticated consumer." Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993). Viewed in this way, the Court holds that the notice to plaintiff of her right to dispute the validity of the debt within thirty days contained in defendant's March 1, 1995 letter was overshadowed by the combined effect of the threat that litigation would be prepared if no response were received within ten days, the heading suggesting that litigation already had been commenced, and the notation in a box on the bottom of the letter reading "DEADLINE: 03/11/95."

 Plaintiff contends also that defendant's letters of March 27, 1995 (Compl. Ex. D) and April 12, 1995 (Compl. Ex. E) similarly violated the Act. The Act, however, is violated only when the conflicting deadlines are likely to confuse and discourage the consumer from exercising his statutory right to dispute the validity of the debt within thirty days. Here, the plaintiff was informed of her right to thirty days in which to dispute the debt by the March 1, 1995 letter. The March 27 letter indicated that she needed to respond by April 6, 1995, more than thirty days from the date of the first letter. Thus, there was no danger that the deadline indicated in the March 27 letter would prevent plaintiff from availing herself of the full thirty days from the time of the initial notice if she chose to dispute the debt. Likewise, the April 12, 1995 letter did not infringe the ...


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