"can be reasonably read to have two (2) or more different
meanings," or that leave consumers uncertain as to their rights,
see Russell, 74 F.3d at 35; Savino, 164 F.3d at 86, RMS's
instruction to contact the creditor with questions regarding the
account does not leave the consumer uncertain. In Russell, the
letter stated that "[i]f you do not dispute this claim (see
reverse side) and wish to pay it within the next 10 days we will
not post this collection to your file," while at the same time
stressing that "it is our practice to post unpaid collections in
the amount of $25 or more to individual credit records."
Russell, 74 F.3d at 32. There was thus a veiled implication
that plaintiffs credit record might be adversely affected should
he not pay the debt.
Moreover, unlike the letter in Savino, the notice at issue
here never demands payment within a certain time. In Savino,
the Second Circuit held that any demand for payment, "without
also explaining that its demand did not override the consumer's
rights under Section 1962g," Savino, 164 F.3d at 86,
effectively contradicts the validation notice and therefore
violates the FDCPA. In the instant case, RMS simply advises
plaintiff that he can either contact the creditor for payment
arrangements or refer to the validation notice should he wish to
dispute the debt. Thus there is no suggestion as to which course
the plaintiff should follow nor even a demand for immediate
For the same reason, Spira v. Consiglio, Parisi and Allen
Inc, 99 Civ. 870 (E.D.N.Y. Jan. 3, 2001) (ARR), a case
plaintiff relies on heavily in support of his motion, is
factually inapposite. In that case, plaintiff received a letter
informing him that "[y]ou may telephone us to discuss this,
however we suggest you contact Brooklyn Union directly."
Spira, 99 Civ. 870, at 2 (emphasis added); see also Macarz v.
Transworld Systems, Inc., 26 F. Supp.2d 368, 371 (Conn. 1998)
(debtor plaintiff received a letter stating that "if there is a
legitimate misunderstanding concerning this debt, contact your
creditor and discuss it" and letter had a validation notice
written in the passive voice and typed in smaller print at the
bottom of the letter). In both Spira and Macarz the courts
held that the language of the letters encouraged the debtor to
contact the creditor and thus could have misled the consumer
into believing that he could trigger his FDCPA rights by
contacting the creditor only.
No such suggestion exists here. The language here makes clear
that "[i]f there are any questions regarding this account,"
plaintiff may contact the creditor, but that if he wanted to
dispute the account, he should "refer to the notice on the
reverse side of [the] letter." Letter at ¶ 4. The letter even
uses bold-face, capital lettering to inform the reader of his
"RIGHTS UNDER FEDERAL LAW." This case is therefore almost
identical to Renick v. Dun & Bradstreet Receivable Management
Services, 290 F.3d 1055 (9th Cir. 2002), where RMS was a party
defendant. In that case the court held that a letter advising
plaintiff to contact the creditor only with questions pertaining
to the phone account would not confuse the least sophisticated
consumer into believing that he should contact the creditor to
validate the debt. See Renick, 290 F.3d at 1057.
This Court similarly concludes that RMS's letter unambiguously
instructs plaintiff: (1) to contact the creditor only with
questions about his account or to make payment arrangements; and
(2) to contact RMS if he disputed the debt and wanted the debt
to be verified. See Letter at ¶ 4, Reverse Side. Accordingly,
defendant's letter does not create the actionable confusion
which plaintiff alleges since not even the "least sophisticated
consumer" could misconstrue its language in a way
that would indicate that he should contact the creditor rather
than RMS to validate the debt.
Plaintiff also contends that RMS's instruction to disregard
the collection letter if payment has already been remitted
suggests to the consumer that he need not contact the debt
collector to validate the debt. This interpretation of the
Letter does not satisfy even the "least sophisticated consumer"
standard, especially since there is language in the Letter which
informs plaintiff of the appropriate course of action should he
wish to dispute the account, advises him to "SEE [the Letter's]
REVERSE SIDE FOR IMPORTANT INFORMATION," and fully recites the
debt validation requirements in § 1692g. The "least
sophisticated consumer" standard still "admits an objective
element of reasonableness," which "protects debt collectors from
liability for unrealistic or peculiar interpretations of
collection letters." Vasquez v. Gertler & Gertler, Ltd.,
987 F. Supp. 652, 655 (N.D.Ill. 1997) (citing Jang v. A.M. Miller &
Associates, 122 F.3d 480, 483-84 (7th Cir. 1997)). Here, the
Court finds that a reasonable — albeit unsophisticated —
consumer would understand that there is no need to dispute a
debt that has already been paid. Therefore, defendant's
instruction to disregard the Letter if payment has been made
does not violate the FDCPA. Hence, plaintiff's claims under §
1692g are dismissed.
Finally, plaintiff alleges FDCPA violations under § 1692e.
Plaintiff's assertions for this count rest wholly on the same
allegedly overshadowing and contradictory language that he
claims violates § 1692g. Absent any other basis for "deception"
or "false representation," the Court dismisses the 1692e claims
for the same reasons set forth above in connection with
plaintiff's other claims.
For the foregoing reasons, defendant's motion to dismiss is
granted and plaintiff's cross motion for summary judgment is
denied. The Clerk of the Court is hereby directed to enter a
judgment in favor of the defendant and against plaintiff
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and to close the above-captioned action.
It is SO ORDERED.
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