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SHAPIRO v. DUN & BRADSTREET RECEIVABLE MANAGEMENT

July 15, 2002

JACOB SHAPIRO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF(S),
V.
DUN & BRADSTREET RECEIVABLE MANAGEMENT SERVICES, INC., DEFENDANT(S).



The opinion of the court was delivered by: Sprizzo, District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Jacob Shapiro brings the above-captioned action on behalf of himself and others similarly situated, alleging a violation of the Fair Debt Collections Practices Act ("FDCPA"). Plaintiff claims that a debt collection letter sent by defendant Dun & Bradstreet Receivable Management Services, Inc. ("RMS") violated the FDCPA because it was so confusing as to "overshadow or contradict" RMS's statutorily-mandated debt validation notice advising plaintiff of his legal rights. Defendant moves to dismiss plaintiffs claim pursuant to Fed.R.Civ.P. 12(b)(6) and plaintiff cross-moves for partial summary judgment pursuant to Fed.R.Civ.P. 56(a). For the reasons set forth below, the Court grants defendant's motion and denies plaintiff's cross motion.

BACKGROUND

The following facts are uncontested. On or about February 8, 2002, RMS sent a notice to plaintiff in connection with a debt owed to ECONnergy Energy Company, Inc. ("the creditor"). See Plaintiffs Memorandum of Law in Support of Cross Motion on Pleadings dated May 6, 2002, Exhibit A, Debt Collection Letter to Plaintiff dated February 2, 2002 ("the Letter"). The front side of the Letter advised plaintiff that the debt was past due, and further advised plaintiff:

At this time[the creditor] ha[s] have requested assistance from [RMS] in collecting this debt. We ask that you send your check directly to [the creditor] for the amount owed. If you have already remitted payment, thank you, and you can disregard this letter.
If there are any questions regarding this account, or if you wish to make payment arrangements, please contact [the creditor] directly at [telephone #]. Should you wish to dispute this account, please refer to the notice on the reverse side of this letter.

Letter at ¶¶ 2,4.

At the bottom of the page and in large bold letters, RMS advised plaintiff: "NOTICE: SEE REVERSE SIDE FOR IMPORTANT INFORMATION." On the reverse side, and in similar oversized lettering, appeared the following language: "IMPORTANT NOTICE OF YOUR RIGHTS UNDER FEDERAL LAW." The notice stated:

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume that this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will obtain verification of the debt or obtain a copy of a judgment, if any, and mail you a copy of such judgment or verification. If you request this office in writing within 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.

Letter at side 2.

DISCUSSION

In deciding a Rule 12(b)(6) motion to dismiss, a court must construe in plaintiff's favor any well-pleaded factual allegations of the complaint. See Finnegan v. Campeau Corp., 915 F.2d 824, 826 (2d Cir. 1990). A court may dismiss the complaint only where it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Allen v. WestPoint-Pepperell, Inc. 945 F.2d 40, 44 (2nd Cir. 1991) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Congress enacted the FDCPA in 1977 to "eliminate abusive debt collection practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged." 15 U.S.C. ยง 1692. In the instant case, plaintiff seeks damages and declaratory and injunctive ...


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