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JOHNSON v. EQUIFAX RISK MANAGEMENT SERVICES

United States District Court, S.D. New York


March 16, 2004.

CHRIS JOHNSON, Plaintiff, -against- EQUIFAX RISK MANAGEMENT SERVICES, a division of EQUIP AX CREDIT INFORMATION SERVICES, INC., Defendant

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge

OPINION & ORDER

On October 16, 2003, Magistrate Judge Ronald L. Ellis issued a report and recommendation ("R&R") with respect to plaintiff's motion for partial summary judgment on his various claims under the Fair Debt Collection Practices Act and defendant's cross-motion for summary judgment. Magistrate Judge Ellis recommended that most of the claims asserted in defendant's cross-motion be denied and that most of the claims asserted in plaintiffs motion for partial summary judgment be granted. The parties subsequently filed objections to Magistrate Judge Ellis' R&R.*fn1 For the following reasons, plaintiffs motion is granted in part and denied in part and defendant's cross-motion is granted in part and denied in part.

I. BACKGROUND

 A. Facts

  The basic facts in this matter are generally not in dispute. On September 15, 1999, a check in the amount of $337.50 bearing the name and address of plaintiff Chris Johnson ("plaintiff' or "Johnson") was accepted by a Bloomingdale's*fn2 store for the purchase of merchandise. *fn3 (Deposition of Chris Johnson ("Johnson Dep.") Exhibit ("Ex.") 6.) The check was returned by the bank unpaid, and subsequently forwarded to defendant Equifax Risk Page 2 Management Services ("defendant" or "Equifax"). On or about October 14, 1999, Equifax sent a letter to Johnson demanding payment of $357.50, including $337.50 for the unpaid check and a $20 service charge.*fn4 (Johnson Dep. Ex. 1 at 1.) On October 22, 1999, Johnson, who is an attorney, mailed a letter to Equifax in which he asserted that he had not written the check to Bloomingdale's, and that Bloomingdale's had been defrauded.*fn5 (Johnson Dep. Ex. 2.) On Page 3 October 29, 1999, Equifax sent two letters to Johnson, one that requested full payment for the dishonored check,*fn6 (Johnson Dep. Ex. 3 at 1), and another that acknowledged Johnson's claim of forgery and required that he complete, sign, and notarize an enclosed "Affidavit of Forgery" to confirm that he had not written nor authorized anyone else to write the check, (Johnson Dep. Ex. 4 at 1.) Johnson did not complete and return this "Affidavit of Forgery." (Johnson Dep. Ex. 3; Gordon Aff. Ex. B.) Page 4

  On November 2, 1999, Johnson wrote to Equifax and asked it to respond to the requests he made in his prior letter, including the identity of the bank on which the contested check was drawn. (Johnson Dep. Ex. 5.) Further, Johnson asked Equifax to respond to these requests in writing, to "not communicate with [him] again for any other purpose," and that Equifax "honor [its] legal obligations under the Fair Debt Collection Practices Act" (Johnson Dep. Ex. 5.) On November 11, 1999, Johnson received a fax with a cover page from "FACS Fax Financial and Credit Services, Return Check Department," Bloomingdale's in-house credit and collection unit. (Johnson Dep. Ex. 6.) Attached to the fax was a copy of the returned check used in the transaction with Bloomingdale's; the check was drawn on an account at Chase in the name of Christopher Johnson, and includes his address. This fax also contained an "Affidavit of Forged Signature," which plaintiff again did not sign and return.

  On November 15, 1999, Equifax again sent two letters to Johnson, (Johnson Dep. Ex. 7 at 1; Ex. 8 at 1.) In one, it requested payment for the "dishonored check" in question, referred to "repeated requests and notifications," and asserted that Johnson "seemingly elected to ignore [his] original obligation." Further, this letter again informed Johnson of the suspension of his check writing privileges at tens of thousands of merchants nationwide. The second letter was an affidavit of forgery, identical to the one sent on October 29. On December 10, 1999, and December 24, 1999, Equifax mailed additional affidavits of forgery to Johnson; Johnson responded to neither one. (Johnson Dep. Ex. 9; Ex. 10.)

  On October 13, 2000, Johnson filed this lawsuit.*fn7 In his motion for partial summary judgment, Johnson claimed that: (1) the October 14 and 29 letters "overshadow" and contradict the validation notice required by Title 15 U.S.C. § 1692g; (2) the October 14 and 29 letters were false, deceptive, and misleading, in violation of Title 15 U.S.C. § 1692e in that they contradicted the validation notice, led him to believe that his October 22 letter was ineffective, failed to inform Johnson that his dispute would be shared with users of Equifax's "negative file," and this was a more onerous requirement to dispute the debt than required by statute; (3) the two Page 5 collection letters and four affidavits of forgery that Equifax mailed after it received Johnson's October 22 letter violated Title 15 U.S.C. § 1692g(b); (4) that each of the collection letters and three affidavits of forgery sent after it received Johnson's November 2 letter violated Title 15 U.S.C. § 1692c(c). Johnson further argued that he was entitled to the maximum amount of statutory damages. In its cross-motion, Equifax made the opposite contention with respect to each of Johnson's four contentions regarding statutory violations and claimed in addition that any violations Equifax may have committed were unintentional and the result of bona fide error, thereby precluding liability. In addition, Equifax contended that Johnson was hot entitled to any actual and statutory damages.

 B. Magistrate Judge Ellis' R&R

  Magistrate Judge Ellis concluded that Equifax violated several provisions of the Fair Debt Collection Practices Act and he therefore recommended that plaintiff's motion for partial summary judgment be granted in part and denied in part and that defendant's motion for summary judgment be granted in part and denied in part. Specifically, Magistrate Judge Ellis concluded that: (1) the October 14 and October 29 collection letters overshadowed or contradicted the validation notice and as such, violated Title 15 U.S.C. § 1962g;*fn8 (2) the October 14 and October 29 collection letters were false, deceptive, or misleading and as such, violated Title 15 U.S.C. § 1692e;*fn9 (3) the October 29 affidavit of forgery was false, deceptive, or misleading and violated Title 15 U.S.C. § 1692e because, in conjunction with the October 29 collection letter, it created confusion;*fn10 (4) because the October 29 and November 15 collection Page 6 letters were sent at a time when Equifax was obligated to cease debt collection, they were in violation of Title 15 U.S.C. § 1692g(b);*fn11 (5) the collection letters and affidavits of forgery sent after November 2 were sent at a time when Equifax was obligated to have ceased communication with Johnson and as such, violated of Title 15 U.S.C. § 1692c(c); and (6) that these violations were not the result of bona fide error, such that Equifax would be shielded from liability pursuant to Title 15 U.S.C. § 1692k(c). Johnson v. Equifax Credit Info. Svcs., Inc., No. 00 Civ. 7836 (HB)(RLE), 2003 U.S. Dist. LEXIS 18705, at *23-*24 (S.D.N.Y. Oct. 16, 2003). Magistrate Judge Ellis recommended that Johnson be awarded the maximum amount of statutory damages — $1,000 for all violations — and that the amount of actual damages be presented at a trial. Id. at *24.

  Each side filed objections to the R&R. Johnson objected to Magistrate Judge Ellis' conclusion that the affidavit of forgery that Equifax sent on October 29 violated Title 15 U.S.C. § 1692e only to the extent that, in conjunction with the October 29 collection letter, it created confusion. Specifically, Johnson contends that this letter violated § 1692e in a second respect, namely that it communicated a more onerous requirement for disputing a debt — i.e., submitting an affidavit — than is required by the statute and thus was deceptive or misleading.*fn12

  Equifax asserted eight objections to the R&R. Equifax contended that summary judgment should not have been granted to plaintiff, but instead summary judgment should have been granted to Equifax on the following grounds: (1) the October 14 and October 29 collection letters did not violate Title 15 U.S.C. § 1692g; (2) the October 14 and October 29 collection Page 7 letters did not violate Title 15 U.S.C. § 1692e; (3) the October 29 affidavit of forgery did not violate Title 15 U.S.C. § 1692e; (4) the collection letters and affidavits*fn13 of forgery did not violate Title 15 U.S.C. § 1692g(b); (5) the post-November collection letters and affidavits of forgery did not violate Title 15 U.S.C. § 1692c(c); (6) Equifax's bona fide error defense precluded any finding of liability; (7) Johnson was not entitled to actual damages; and (8) Johnson was not entitled to statutory damages.

  II. DISCUSSION

  Those recommendations by Magistrate Judge Ellis to which the parties interpose objections are reviewed de novo. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 673 (1980).

 A. Plaintiffs Objections

  Magistrate Judge Ellis found that the October 29 affidavit of forgery violated Title 15 U.S.C. § 1692e because, in combination with the October 29 collection letter, it created confusion and therefore was false, deceptive, or misleading. In his objections, Johnson argued that the October 29 affidavit of forgery violated Title 15 U.S.C. § 1693e in a second respect, in that it communicated a more onerous requirement for disputing debt than required by statute.*fn14 I agree with Magistrate Judge Ellis' conclusion that this affidavit of forgery would have actually aided Johnson in furtherance of his goal and therefore did not impose a more onerous requirement than required by statute. As Equifax argued, the affidavits of forgery were simply a tool to investigate a disputed check, and, in fact, the preliminary sentence in Equifax's affidavit of forgery correspondence reads, "We acknowledge your claim of forgery.'" (Defendant's Response to Plaintiffs Objections to Magistrate's Report and Recommendation ("Def. Obj.") at 2.) Therefore, even though I may not need to address plaintiffs contention, Mauro v. Southern Page 8 New England Telecomm., Inc., 208 F.3d 384, 386 n.1 (2d Cir. 2000) (affirming district court's refusal to consider claims raised for the first time in summary judgment),*fn15 I find that it is without merit and Magistrate Judge Ellis properly rejected plaintiffs second ground for finding that the October 29 affidavit of forgery violated Title 15 U.S.C. § 1693e.

 B. Defendant's Objections

  Equifax raised eight objections to the R&R, which I will address seriatim.

 1. The October 14 and October 29 Collection Letters Violated Title 15 U.S.C. § 1692g

  As noted, Magistrate Judge Ellis concluded that the October 14 and 29 letters "overshadowed" and contradicted the validation notice required by Title 15 U.S.C. § 1692g. Specifically, with respect to the October 14 collection letter, he found that "[s]imultaneously, Equifax gave Johnson a thirty-day notice to dispute the validity of the debt, yet told him that he would have to pay the full amount in order to restore his good standing and creditworthiness." Johnson, 2003 U.S. Dist. LEXIS 18705, at *12-*13. He further explained:

Equifax violated the statute when it suggested to Johnson that it would not cooperate, that is, it would not restore his check cashing privileges until he paid the disputed amount. Notifying him of the opportunity to dispute the validity of the debt in question, while exacting penalties against him for failure to pay the disputed debt, Equifax sent confusing and conflicting messages to Johnson. This would lead the least sophisticated consumer to believe that he had no choice but to pay the debt.
Id. at *13-*14 (citing Desantis v. Roz-Ber, Inc., 51 F. Supp.2d 244 (E.D.N.Y. 1999)). With respect to the October 29 letter, Magistrate Judge Ellis found it violated Title 15 U.S.C. § 1692g because it failed to inform Johnson of the validation process and gave the impression that only immediate payment could avoid adverse action by Equifax because it did not address the letter Johnson sent on October 22. Id. at *14-*15. Defendant contends that the validation notice in the October 14 letter closely tracked language approved by the Seventh Circuit in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997) and thus does not "overshadow" or contradict the validation notice required by the statute. Equifax further contends that it is entitled to summary judgment because Page 9 the October 14 collection letter lacked any of the common features that cause overshadowing, such as a reference to a deadline that appears to conflict with the thirty days a consumer has to dispute a debt or the use of different typefaces or font sizes to obscure the validation notice. Lerner v. Forster, 240 F. Supp.2d 233, 240 (E.D.N.Y. 2003) (collecting cases).

  Title 15 U.S.C. § 1692g requires that the initial collection letter inform the consumer of certain information, including the amount of the debt, the name of the creditor, "a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector," and "a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer." Title 15 U.S.C. § 1692g(a). In short, Title 15 U.S.C. § 1692g requires the debt collector to inform the consumer of his right to dispute and demand verification of the debt. Even where a collection letter contains the requisite validation notice, it nevertheless violates the FDCPA if it contains language that overshadows or contradicts other language that informs the consumer of his or her rights. Savino v. Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998). The Second Circuit evaluates whether a dunning letter violates Title 15 U.S.C. § 1692g from the perspective of the least sophisticated consumer.*fn16 Clomon v. Jackson, 988 F.2d 1314, 1318 (2d Cir. 1993) (adopting the least sophisticated consumer standard for all cases under Title 15 U.S.C. § 1692e). However, it also applies this standard "in a manner that protects debt collectors against liability for unreasonable misinterpretations of collection notices." Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 310 (2d Cir. 2003) (quoting Clomon, 988 F.2d at 1319).

  As an initial matter, defendant's heavy reliance on Bartlett*fn17 is misplaced. Defendant Page 10 contends that "[i]n the instant case, Equifax's validation notice follows Bartlett to the letter[, and t]his alone entitles Equifax to summary judgment on plaintiffs overshadowing claim." (Def. Obj. at 7-8 (citing Lerner, 240 F. Supp.2d 233).) However, the case that Equifax cites for the proposition that its use of language endorsed in Bartlett entitles it to summary judgment on this issue in fact stands for a contrary proposition. Lerner*fn18 instructs that the proper analysis is not how well a debt collector copied two paragraphs from Judge Posner's suggested dunning letter, but rather whether the debt collector included other language that overshadowed this paragraph. Lerner, 240 F. Supp.2d at 237 ("The main question this Court must consider is whether the language in the second paragraph of the Letter `overshadowed' or `contradicted' the language in the third paragraph."); see also id. at 239 ("The language contained in the second paragraph of the Bartlett letter is notably similar to that in the second paragraph of the Letter in this case."). That Equifax included a portion of Judge Posner's suggested language is irrelevant to whether other language it wrote in its collection letter overshadowed this proper validation notice.*fn19 Magistrate Judge Ellis therefore correctly focused on whether other language in the October 14 collection letter would confuse the reasonable least sophisticated consumer, notwithstanding a proper validation notice.

  As defendant notes, the October 14 letter lacked the features that have caused courts to find overshadowing violations. For example, the validation notice is in the same typeface and size as the rest of the letter (with minor exceptions); it does not contain any deadlines that might appear to conflict with the thirty-day period for the consumer to dispute the debt, nor any other ominous language such as "immediate payment" of "immediate attention."*fn20 What concerned Magistrate Judge Ellis, however, was the letter's assertion that the check had been reported to Page 11 Equifax's negative file and that Johnson's check cashing privileges would be restored when the debt was paid. I share Magistrate Judge Ellis' concern that the least sophisticated consumer might reasonably believe that repayment, and repayment only, would restore the debtor's check-writing privileges, which had already been revoked as a penalty for the unpaid check.*fn21 Although communicated without any visual legerdemain, the threat here is quite palpable, and Magistrate Judge Ellis was correct to conclude that the failure to clarify whether the consumer could restore his check writing privileges by any other means than payment would confuse the reasonable least sophisticated consumer.

  Finally, I am unpersuaded by defendant's attempt to distinguish Desantis, upon which Magistrate Judge Ellis relied. In Desantis, the court found that although the letter contained the requisite validation notice (in the same font size, on the same page, and preceded with the words, "IMPORTANT NOTIFICATION"), the letter also contained language that overshadowed this validation notice. 51 F. Supp.2d at 250. Significant was the fact that the phrase "IMMEDIATE ATTENTION" above the paragraph which demanded payment was "threatening in nature" and "obvious[ly] inten[ded] to evoke immediate payment from the debtor." Id. Moreover, the letter there suggested to the consumer that the debt collector would not cooperate with the consumer if he or she did not remit payment or make arrangements for payment. Id. Although Equifax here did not threaten to withhold cooperation absent payment, its letter, as discussed above, appears to have threatened plainitff. Id. Accordingly, I agree with Magistrate Judge Ellis that the October 14 letter overshadowed or contradicted the validation notice, in violation of Title 15 U.S.C. § 1692g.

  With respect to Magistrate Judge Ellis' recommendation that the October 29 letter also violated Title 15 U.S.C. § 1692g because it "failed to inform Johnson of the validation process and gave him the impression that only immediate payment could avoid adverse action by Equifax," Johnson, 2003 U.S. Dist. LEXIS 18705, at *15-*16, defendant objects on the basis that the law does not require debt collectors to provide a second validation notice and that this letter Page 12 does not use the words "immediate payment" or contain any deadlines. Defendant correctly notes that Title 15 U.S.C. § 1692g requires the debt collector to include the validation notice in the initial communication or within five days thereof, Title 15 U.S.C. § 1692g(a), and there is no dispute that Equifax complied with this provision. Thus, Equifax's failure to include the validation notice in the October 29 letter did not violate Title 15 U.S.C. § 1692g. However, I agree with Magistrate Judge Ellis that the failure to include this notice, in conjunction with the fact that this letter did not address Johnson's October 22 letter which disputed the debt and which therefore should have caused Equifax to cease debt collection, overshadowed and contradicted the validation notice in that it gave the impression that only immediate payment could avoid adverse action by Equifax. Equifax contends that the case that Magistrate Judge Ellis relied on, Barrientos v. Law Offices of Mark L. Nichter, 76 F. Supp.2d 510 (S.D.N.Y. 1999), is distinguishable on the basis that its October 29 collection letter did not include any deadlines or dates by which payment was required. This argument misses the point, as it was the mere sending of this letter — which Equifax concedes was in error — that would appear to the least sophisticated consumer to be in conflict with the rights required by the FDCPA.*fn22

 2. The October 14 and October 29 Collection Letters Violated Title 15 U.S.C. § 1692e

  Title 15 U.S.C. § 1692e prohibits a debt collector from "us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt." The statute provides a non-exhaustive list of sixteen examples of conduct that violates this provision, including that it is illegal to use "any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer." Title 15 U.S.C. § 1692e(10). Johnson proposed four reasons that these two letters were "false, deceptive, or misleading," two of which Magistrate Judge Ellis accepted and two of which he rejected. The two that Magistrate Judge Ellis accepted and which Equifax challenges here are that: (1) the October 14 and October 29 collection letters contradict the validation notice; and (2) the October Page 13 29 collection letter led Johnson to believe that his October 22 letter was ineffective. Johnson, 2003 U.S. Dist. LEXIS 18705, at * 15.*fn23

  Magistrate Judge Ellis' concluded that the October 14 and October 29 collection letters violated Title 15 U.S.C. § 1692e(10) for substantially the same reasons that they were found to violate Title 15 U.S.C. § 1692g, namely that they were ambiguous. Id. at *15-*16 (quoting Barrientos, 76 F. Supp.2d at 513, and Russell 74 F.3d at 35). Because I conclude that Equifax's October 14 letter contained language that created an ambiguity that overshadowed or contradicted the statutorily required validation notice, it follows that the October 14 letter was false, misleading or deceptive, in violation of Title 15 U.S.C. § 1692e.

  Magistrate Judge Ellis also found that Equifax's October 29 letter violated Title 15 U.S.C. § 1692e because it imparted the impression that Johnson's letter of October 22 disputing the debt was ineffective — i.e., for the same reason he found that it violated Title 15 U.S.C. § 1692g. Johnson, 2003 U.S. Dist. LEXIS 18705, at *16. Equifax objects on the basis that because it sent the affidavit of forgery on the same day that it sent a letter that acknowledged his dispute, it is not clear how Johnson would be misled.*fn24 I disagree with Equifax that the fact that it sent the affidavit of forgery which acknowledged its receipt of Johnson's October 22 letter on the same day that it sent the second collection letter eliminates any confusion about the October 29 collection letter. To the contrary, this affidavit of forgery, if anything, increases the chance that a least sophisticated consumer would believe that his or her dispute of the debt was ineffective, as Equifax on the same day sent one letter which indicated it had received the dispute and a second letter which continued to attempt to collect the debt, in blatant violation of the law Page 14 and the representation made in the first collection letter. I adopt Magistrate Judge Ellis' conclusion that the October 29 letter violated Title 15 U.S.C. § 1692e because it created the impression that Johnson's dispute of the debt was ineffective.

 3. The October 29 Affidavit of Forgery Violated Title 15 U.S.C. § 1692e

  Magistrate Judge Ellis rejected Equifax's claim in its cross-motion for summary judgment that the October 29 affidavit of forgery did not violate Title 15 U.S.C. § 1692e. Johnson, 2003 U.S. Dist. LEXIS 18705, at *22-*23. Magistrate Judge Ellis concluded that although the affidavit of forgery was not a more onerous requirement than provided by statute,*fn25 Id. at * 17, this affidavit "was false, misleading, and deceptive within the meaning of Section 1692e, particularly in combination with the October 29 collection letter demanding full payment as a condition for restoring Johnson's good standing." Id. at *22-*23. Equifax objects to this conclusion on the basis that the October 29 collection letter cannot be taken into consideration in any determination of whether the October 29 affidavit of forgery violated Title 15 U.S.C. § 1692e because the collection letter was a mistake and thus Equifax is protected from liability by the bona-fide error defense of Title 15 U.S.C. § 1692k(c). (Def. Obj. at 15.) Equifax also contends that each letter stands on its own and that there is nothing inherently false, deceptive, or misleading on the face of the October 29 affidavit of forgery.

  As discussed above, I agree with Magistrate Judge Ellis and adopt his recommendation that although the October 29 affidavit of forgery may not on its face have contained any false, deceptive, or misleading representation, that in the sequence of events it was deceptive or misleading means in connection with the collection of a debt. Title 15 U.S.C. § 1692e (prohibiting the use of "any false, deceptive, or misleading representation or means in connection with the collection of any debt"). As discussed below, defendant is not entitled to summary judgment on its contention that the October 29 letter was a bona fide error for which liability is Page 15 precluded.

 4. The Collection Letters and Affidavits of Forgery Violated Title 15 U.S.C. § 1692g(b)

  Magistrate Judge Ellis agreed with Johnson's claim that the two collection letters, dated October 29 and November 15, sent after Johnson sent his October 22 letter violated Title 15 U.S.C. § 1692g(b), which requires a debt collector to cease collection of the debt if the consumer notifies the debt collector that the debt is disputed or requests information about the original creditor until the debt collector provides verification of the debt or the requested information. Magistrate Judge Ellis rejected Johnson's claim that the four affidavits of forgery also violated Title 15 U.S.C. § 1692g(b), as he found that these were not attempts to collect a debt, but rather, were Equifax's attempts to facilitate disputation of the debt. Johnson, 2003 U.S. Dist. LEXIS 18705, at * 19. Equifax concedes that the October 29 letter violated Title 15 U.S.C. § 1692g(b), but asserts that it was sent as a result of a bona fide error for which Equifax cannot be held liable. Equifax contends that the November 15 collection letter did not violate Title 15 U.S.C. § 1692g(b) because it was sent after Equifax transmitted verification of the debt (in the form of a copy of the check) on November 11. While Equifax is correct that it transmitted verification of the debt, the record here indicates that Equifax never provided the payee's address, which Johnson requested in his October 22 letter and which Equifax was thereafter obligated to provide before it resumed debt collection. Title 15 U.S.C. § 1692g(b). Although Equifax informed Johnson of the name of the original creditor — i.e., Bloomingdale's — in its three collection letters, it never provided an address of the Bloomingdale's store where this check was tendered or any other address for Bloomingdale's. Thus, as Magistrate Judge Ellis found, Equifax resumed its debt collection before it provided the information that it was obligated to provide Johnson, in response to his request, in violation of Title 15 U.S.C. § 1692g(b).

 5. The Post-November Collection Letters and Affidavits of Forgery Violated Title 15 U.S.C. § 1692c(c)

  On November 2, Johnson sent Equifax a letter in which he stated: "Please respond in writing to the requests that I made in my earlier letter, and do not communicate with me again for Page 16 any other purpose."*fn26 Magistrate Judge Ellis concluded that at that point Equifax was required to cease communications with Johnson with respect to the debt, pursuant to Title 15 U.S.C. § 1692c(c), which prevents a debt collector from further communicating with a consumer who indicates in writing his or her refusal to pay the debt or who requests the cessation of further communications.*fn27 Magistrate Judge Ellis therefore recommended that the two collection letters and the three affidavits of forgery that Equifax sent after it received Johnson's October 22 letter violated Title 15 U.S.C. § 1692c(c). Equifax contends that plaintiff improperly seeks to have it both ways — i.e., that these letters were both refusals to pay pursuant to Title 15 U.S.C. § 1692c(c), which prevented any further communication, and demands for verification pursuant to Title 15 U.S.C. § 1692g(b), which required further communication. Equifax argues that the copy of the disputed check that it mailed to Johnson on November 11 illustrates the absurdity of plaintiffs position because this verification was simultaneously in fulfillment of its obligation under Title 15 U.S.C. § 1692g(b) and in violation of Title 15 U.S.C. § 1692c(c). (Def. Obj. at 17.) Equifax also argues that these letters were not requests to cease all communications-especially since they specifically requested that Equifax provide the information about the original creditor and verification of the debt — and that in fact they served to dictate the terms of the communications.

  Equifax's argument that Johnson seeks to have it both ways is unpersuasive. Johnson's November 2 letter is unequivocally a cease-and-desist letter, which triggered Title 15 U.S.C. § 1692c(c) Page 17 and for which Equifax was liable for all subsequent communications that did not fit within the exceptions enumerated in the statute. In his November 2 letter, he clearly states his desire that Equifax not communicate for any purpose other than to provide the information he previously requested but had not yet been provided. There is nothing "absurd" about this request that would relieve Equifax of its statutory obligation to cease communication. Indeed, Johnson's request that Equifax send only the information that he previously requested is entirely sensible. Accordingly, as Magistrate Judge Ellis found, the collection letter Equifax sent on November 15 and the three affidavits of forgery it sent after November 2 (on November 15, December 10, and December 24) violated Title 15 U.S.C. § 1692c(c).

 6. Summary Judgment Is Denied to Equifax on Its Bona Fide Error Defense

  A debt collector may not be held liable if it can demonstrate by a preponderance of the evidence that its "Violation [of the Fair Debt Collection Practices Act] was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such errors." Title 15 U.S.C. § 1692k(c). Equifax reasserts its contention that it is entitled to summary judgment on its bona fide error defense on two grounds: First, with respect to its initial collection letter of October 14, Equifax contends that because it relied on the "safe harbor" language approved in Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997), any "overshadowing" violation was unintentional. As discussed above, see supra II.B. 1, Equifax's contention that its reliance on the language endorsed by Chief Judge Posner in Bartlett entitles Equifax to summary judgment on the basis that any violation was a bona fide error for which it cannot be liable is without merit.

  Second, Equifax contends that it is entitled to summary judgment with respect to its claim that the October 29 letter was a bona fide error for which it cannot be held liable for violating Title 15 U.S.C. § 1692g(b). Magistrate Judge Ellis rejected Equifax's bona fide error defense on the basis that its procedures were clearly inadequate given the numerous errors and violations of the FDCPA. Johnson, 2003 U.S. Dist. LEXIS 18705, at *12-*13. Equifax contends here that it submitted uncontested evidence that it maintained reasonable procedures to avoid such errors and that, in this case the October 29 letter, was inadvertently generated and sent to Johnson due to an Page 18 undetermined processing error.*fn28 Equifax argues that it met the burden of showing by a preponderance of the evidence that its procedures were reasonable and that Johnson offered no evidence to the contrary and that accordingly it should have been granted summary judgment pursuant to Federal Rule of Civil Procedure 56(e). I disagree. Although Johnson did not submit any affidavits to contradict the affidavit of Cathy Reed, who was responsible for Equifax's collections operation during the time in question, it cannot be said on the basis of Ms. Reed's testimony that there is no genuine issue of material fact and that being so, summary judgment must be denied.

 7. Summary Judgment Is Denied to Equifax on Johnson's Claim for Actual Damages and the Issue Is Reserved for Trial

  Magistrate Judge Ellis rejected Equifax's contention in its cross-motion for summary judgment that Johnson is not entitled to actual damages, and concluded instead that the determination of "actual damages, including out-of-pocket expenses, mental distress and pain and suffering" be reserved for trial. Equifax contends that Johnson has no compensable out-of-pocket expenses or mental distress and pain and suffering. With respect to out-of-pocket expenses, Equifax contends that the $150 in time that Johnson spent responding to Equifax rather than working for paying clients is wholly speculative and furthermore, that the time spent responding to or disputing a collection letter has never been found to be the basis for actual damages.

  Equifax cites Padilla v. Payco. Gen. Am. Credits. Inc., 161 F. Supp.2d 264, 277 n.20 (S.D.N.Y. 2001), and Casella v. Equifax Credit Info. Svcs., 56 F.3d 469, 474 (2d Cir. 1995), for the proposition that "even if plaintiff was acting as his own attorney, he would not be entitled to damages for the time spent responding to Equifax's collections efforts." (Def. Obj. at 20.) However, neither case is on point, as both pertain to a plaintiff's right to recover attorneys' fees. *fn29 Equifax's reliance on Casella to dispute Johnson's entitlement to pain and suffering is also Page 19 unpersuasive. In Casella, the court stated that, "[i]n granting appellees' motion for summary judgment, the District Court properly recognized that `actual damages' may include humiliation and mental distress, even in the absence of out-of-pocket expenses." 56 F.3d at 474. Unlike in Casella, where there was no evidence that the credit-reporting agencies provided the consumer's credit report to any third party, here Equifax repeatedly reminded Johnson in the various collection letters that the check had already been forwarded to the negative file, which was used by tens of thousands of retails establishments. Thus, Equifax's argument that Johnson "has failed to show that the bad check ever appeared on his credit report, much less that he knew (as in Casella) it was on his credit report," (Def. Obj. at 22), rings hollows. Therefore, I adopt, Magistrate Judge Ellis' recommendation that the issue of actual damages be reserved for trial.

 8. Summary Judgment Is Denied to Equifax on Johnson's Claim for Statutory Damages and the Issue Is Reserved for Trial

  Equifax also objects to Magistrate Judge Ellis' finding that the statutory maximum of $1,000 was appropriate on the facts here. Title 15 U.S.C. § 1692k(b)(1) provides that a determination of the amount of statutory damages should be based on "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional." Equifax contends that under this standard, the nature of its violations were "so benign as not to cause any actual damages whatsoever." (Def. Obj. at 22.) I agree that Magistrate Judge Ellis' recommendation that the maximum amount of statutory damages pursuant to Title 15 U.S.C. § 1692k(a)(2)(A) finds support in the record given the frequency and persistence of Equifax's noncompliance. Nonetheless, I believe that the better course is to reserve a determination of statutory damages until the issues of actual damages and Equifax's bona fide error defense are fully aired at trial next month. Page 20

  III. CONCLUSION

  For the foregoing reasons, plaintiffs motion for partial summary judgment is granted in part and denied in part and defendant's cross-motion for summary judgment is granted in part and denied in part because: (1) the October 14 and October 29 collection letters overshadowed or contradicted the validation notice and as such, violated Title 15 U.S.C. § 1962g; (2) the October 14 and October 29 collection letters were false, deceptive, or misleading and as such, violated Title 15 U.S.C. § 1692e; (3) the October 29 affidavit of forgery was false, deceptive, or misleading and violated Title 15 U.S.C. § 1692e in two respects — i.e., because it, in conjunction with the October 29 collection letter, created confusion and because it communicated a more onerous requirement than required by the FDCPA; (4) because the October 29 and November 15 collection letters were sent at a time when Equifax was obligated to cease debt collection they were in violation of Title 15 U.S.C. § 1692g(b);*fn30 (5) the collection letters and affidavits of forgery sent after November 2 were sent at a time when Equifax was obligated to have ceased communications with Johnson and as such, violated Title 15 U.S.C. § 1692c(c); (6) there is a material issue of disputed fact as to whether Equifax has a bona fide error defense; (7) there is a material issue of disputed fact as to whether Johnson should be awarded any actual damages, and if so, the amount; and (8) there is a material issue of disputed fact as to whether Johnson should be awarded statutory damages, and if so, the amount.*fn31 The Clerk of the Court is instructed to close this motion and any other open motions.

 THIS CONSITUTES THE DECISION AND ORDER OF THE COURT.


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