The opinion of the court was delivered by: Wexler, District Judge.
This is an action commenced by Plaintiff Elane Bleich
("Plaintiff" or "Bleich") pursuant to the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 ("FDCPA"). Named as defendants
are The Revenue Maximization Group, Inc. ("Revenue") and Nassau
Health Care Corporation ("Nassau" or the "Hospital"). The
collection letter at issue was sent by Revenue, a collection
agency, to obtain payment on a debt, incurred by Plaintiff, to
the Hospital. Plaintiff alleges that the letter violates the
FDCPA and seeks damages and attorneys fees from both parties.
Presently before the court is Revenue's motion for summary
judgment. For the reasons set forth below, the motion is
On January 8, 2001, Plaintiff was administered a flu shot for
which she paid to the Hospital a $25 fee. Thereafter, Plaintiff
received from the Hospital a statement dated February 26, 2001,
claiming that Plaintiff owed the Hospital $25 for services
rendered on the day that she received (and paid for) the flu
shot. Despite the facts that Plaintiff contacted the Hospital on
more than one occasion and provided the Hospital with a copy of
the $25 cancelled check, the Hospital failed to correct its
records and continued to send invoices to Plaintiff. Thus,
invoices dated April 23, 2001 and May 29, 2001 were sent by the
Hospital to Plaintiff seeking payment of the $25 alleged debt.
The Collection Letter also contained specific information
required by the FDCPA regarding the validity of the debt at
issue. Thus, the Collection Letter advised Plaintiff that the
debt would be assumed to be a valid debt unless, within thirty
days of receipt of the letter, Plaintiff disputed its validity.
The Collection Letter advised Plaintiff of the mechanism for
disputing the debt, i.e., submitting a written statement to
Revenue stating that the debt is not owed. In the event that
Plaintiff wrote to Revenue disputing the debt, the letter stated
(as required by law) that it would obtain verification of the
debt and mail such verification to Plaintiff.
Although Plaintiff disputed the validity of the debt, she did
not take advantage of the statutory debt validation procedure
set forth in the Collection Letter. Indeed, she made no attempt
to contact Revenue directly regarding the debt. Instead, shortly
after receipt of the Collection Letter, Plaintiff commenced this
II. The Allegations of the Complaint
Plaintiff alleges that the Collection Letter violates that
FDCPA in various respects. Specifically, Defendants are alleged
to have violated 15 U.S.C. § 1692e, 1692e(2)(A) and 1692e(10).
Each of these sections make it unlawful to make certain false
representations in connection with the collection of a debt.
Section 1692e states, in general terms, that it is unlawful for
a debt collector to "use any false, deceptive or misleading
representation or means in connection with the collection of any
debt." 15 U.S.C. § 1692e. Section 1692e(2)(A) makes it
specifically unlawful to falsely represent "the character,
amount or legal status of any debt." 15 U.S.C. § 1692e(2)(A).
Finally, Section 1692e(10) makes it unlawful to use any "false
representation or deceptive means to collect or attempt to
collect any debt . . ." 15 U.S.C. § 1692e(10).
While Plaintiff states that all three FDCPA sections cited
were violated by the Collection Letter, she relies on one
allegedly false statement in that letter to support of all her
claims. Specifically, Plaintiff alleges that the Collection
Letter stated, falsely, that the $25 debt was in arrears when,
in fact, it was not. This statement as to the validity of the
debt is alleged to constitute a "false, deceptive and misleading
representation" (in violation of Sections 1692e and 1692e(10))
as well as falsely representing "the character, amount or legal
status" of the debt (in violation of Section 1692e(2)(A)).
III. The Motion For Summary Judgment
Revenue moves for summary judgment arguing that the allegedly
false statement relied upon cannot support an FDCPA cause of
action. Revenue argues that it relied upon the Hospital when
assuming the validity of the debt. It is further argued that the
FDCPA contains a specific mechanism for challenging the validity
of a debt that is the subject of a collection letter. The
presence of this specific statutory procedure is argued to
negate the right to state an FDCPA cause of action based only
upon the alleged invalidity of a debt.
Revenue further argues that even if the Collection Letter
violates the FDCPA, it is, in any event, entitled to take
advantage of the "bona fide error" defense set forth in
15 U.S.C. § 1692k(c). That section of the FDCPA provides that a
debt collector may not be held liable if it can be shown, by a
preponderance of the evidence, that the violation of the act
"was not intentional
and resulted from a bona fide error ...