The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
Plaintiff Andrey Kolganov ("plaintiff" or "Kolganov") commenced
this suit against defendant Phillips & Cohen Associates, Ltd.
("defendant" or "P&C") alleging violations of the Fair Debt
Collection Practices Act (the "FDCPA" or the "Act"),
15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act
(the "FCCPA"), Fla. Stat. § 559.72. P&C moves for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. For the reasons set forth below, the motion is GRANTED
in part and DENIED in part.
Plaintiff received a collection letter from P&C dated January
11, 2002. (Compl., exh. A). On June 25, 2002, plaintiff filed
this action alleging that P&C violated §§ 1692e and 1692g of the
FDCPA. Specifically, plaintiff claims that the letter fails to
specify the amount of debt owed and requires an immediate oral
communication in violation of 15 U.S.C. § 1692g(a)(1) and (a)(4). (Id. at 5). Plaintiff further alleges that the letter
overshadows 15 U.S.C. § 1692g by demanding immediate contact.
(Id.). Although plaintiff originally claimed that the use of
"Esq." after the name "Adam S. Cohen" violated
15 U.S.C. § 1692e(3) and F.S.A. § 559.72 in that it deceptively implies that
P&C is a law firm, (id. at 6), he has since withdrawn this
claim. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. at
III. Summary Judgment Standard of Review
Summary judgment should not be granted unless "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c). A fact is material "if it might affect the outcome of the
suit under the governing law." Holtz v. Rockefeller & Co.,
258 F.3d 62, 69 (2d Cir. 2001). An issue of fact is genuine only if a
jury could reasonably find in favor of the nonmoving party based
on that fact. Id. The moving party bears the initial burden of
establishing the absence of any genuine issue of material fact,
after which the burden shifts to the nonmoving party to establish
the existence of a factual question that must be resolved at
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256,
91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). The trial court is required
to construe the evidence in the light most favorable to the
nonmoving party, and draw all reasonable inferences in its favor.
Id. at 252; Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d
Congress enacted the FDCPA to protect consumers from abusive,
threatening, deceitful and otherwise unscrupulous debt collection practices. Russell v.
Equifax A.R.S., 74 F.3d 30, 33 (2d Cir. 1996). A written
validation notice stating the amount of the debt and the name of
the creditor, among other requirements, is mandated by
15 U.S.C. § 1692g when a debt collector solicits payment from a consumer.
The FDCPA is a strict liability statute, and thus "a consumer
need not show intentional conduct by the debt collector to be
entitled to damages." Grief v. Wilson, Elser, Moskowitz, Edelman
& Dicker, LLP, 217 F. Supp.2d 336, 339 (E.D.N.Y. 2002) (quoting
Russell, 74 F.3d at 36).
In order to determine whether the FDCPA has been violated, a
court must apply an objective standard, measured by how the
"least sophisticated consumer" would interpret the debt
collector's notice. DeSantis v. Computer Credit, Inc.,
269 F.3d 159, 161 (2d Cir. 2001); Schweizer v. Trans Union Corp.,
136 F.3d 233, 237 (2d Cir. 1998). The purpose of this objective
standard is to "ensure that the FDCPA protects all consumers, the
gullible as well as the shrewd." Clomon v. Jackson,
988 F.2d 1314, 1318 (2d Cir. 1993). Using this standard, the court must
determine whether the collection letter "can be reasonably read
to have two or more different meanings, one of which is
inaccurate." Russell, 74 F.3d at 35 (emphasis added).
A debt collection letter must include: (1) the amount of the
debt; (2) the name of the creditor to whom the debt is owed; (3)
a statement indicating that, unless the debtor disputes the
validity of the debt within thirty days of receiving the debt
collection letter, the debt will be presumed valid; (4) a
statement indicating that, if the debtor notifies the debt
collector in writing within thirty days of receiving the debt
collection letter that the debt is disputed, the debt collector
will obtain verification of the debt and mail a copy of the
verification to the debtor; and (5) a statement indicating that,
if requested in writing by the debtor within thirty days of receiving the debt collection letter, the debt collector will
provide the debtor with the name and address of the original
creditor, if different from the current creditor.
15 U.S.C. § 1692g(a)(1)-(5). This information, commonly referred to as a
"validation notice," arms the consumer with the facts necessary
to challenge the debt allegedly owed prior to submitting payment
to the collection agency. Russell, 74 F.3d at 32-33; Rumpler
v. Phillips & Cohen Assocs., 219 F. Supp.2d 251, 258 (E.D.N.Y.
"However, `it is not enough for a debt collection agency simply
to include the proper debt validation notice in a mailing to a
consumer Congress intended that such notice be clearly
conveyed.'" Rumpler, 219 F. Supp.2d at 258 (quoting Russell,
74 F.3d at 35). The FDCPA is violated where a debt collection
letter contains language that "overshadows or contradicts"
language in the validation notice. Russell, 74 F.3d at 34. A
debt collection letter is overshadowing or contradictory if it
"fails to convey the validation information clearly and
effectively and thereby makes the least sophisticated consumer
uncertain" as to their rights. Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 309 (2d Cir. 2003) (quoting Savino v.
Computer Credit, Inc., 164 F.3d 81, 85 (2d Cir. 1998)); see
also Orenbuch v. N. Shore Health Sys., 250 F. Supp.2d 145, 153
(E.D.N.Y. 2003) (same). The FDCPA is also violated if the
collector conveys the required information "in a confusing or
contradictory fashion so as to cloud the required message with
uncertainty." DeSantis v. Computer Credit, Inc., 269 F.3d 159,
161 (2d Cir. 2001); Rumpler, 219 F. Supp.2d at 258.
The collection letter's second paragraph reads: "You are hereby
notified that the above balance does not include the most recent
charges assessed, any applicable over the limit fees, or your most recent daily interest charges. In order to obtain your
most current balance information, please call 1-800-889-2223."
(Compl., exh. A). Plaintiff claims that although the letter lists
the outstanding balance as $7,562.00, it fails to include ...