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BLEICH v. REVENUE MAXIMIZATION GROUP

December 3, 2002

ELANE BLEICH, PLAINTIFF,
V.
THE REVENUE MAXIMIZATION GROUP, INC. AND NASSAU HEALTH CARE CORPORATION, DEFENDANTS.



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

MEMORANDUM AND ORDER

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 granted.

BACKGROUND

I. Factual Background

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.

After sending the May 29, 2001 letter, the Hospital referred the $25 debt to Revenue to pursue collection. In a letter dated July 24, 2001, (the "Collection Letter") Revenue demanded payment of the $25 debt. The Collection Letter referred to Plaintiffs "failure to pay the amount due." It further stated that the Hospital "expected payment at the time treatment was provided," and that the "amount due is now seriously in arrears."

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 action.

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 ...


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